Proceedings of the Standing Senate Committee on
National Finance
Issue 5 - Evidence
OTTAWA, Wednesday, April 5, 2000
The Standing Senate Committee on National Finance, to which was referred Bill S-13, to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the workplace, for dealing with allegations of wrongdoing and for protecting whistle-blowers, met this day at 5:51 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before us today is Bill S-13, the Public Service Whistleblowing Act. It is a private member's bill sponsored by Senator Kinsella. It received second reading on February 22 and was referred to us.
Please proceed, Senator Kinsella.
Hon. Noël A. Kinsella: Honourable senators, Bill S-13, the Public Service Whistleblowing Act, is designed to build on the desire to have the Canadian public service operate on the principles of ethics and values. We are very fortunate in Canada to have perhaps one of the top -- if not the top -- public services anywhere in the world. Canadians can be very proud of the men and women who constitute the Public Service of Canada and the dedication and dignity with which they serve Canadians as members of the Public Service of Canada.
This bill is situated in a milieu wherein ethics and values constitute the strong foundation of our modern, first-class public service. In a sense, the purpose of the bill can be summarized by the three Ps.
The first P is promotion. It is important that we have an ongoing education process. We need to educate persons working in the public service on the ethical and value foundation we have accepted.
The second P is process. We need a mechanism or process to protect the public interest. This mechanism would allow a modern, first-class public service to deal wrongdoing or even illegal activity in an ethical and value-based manner without placing a public servant's career on the line. That, unfortunately, is the situation currently.
The third P is protection. The bill is also about protecting our public employees from any retaliation that may be taken against that public servant because they have done the ethical thing or the value-based thing.
Honourable senators, this bill provides a multi-pronged approach to the matter of whistle-blowing in the public service. The bill provides a new framework for dealing with whistle-blowing. First, it provides for an education function supportive of ethics and values in the public service by mandating the Public Service Commission to deal with the matter of whistle-blowing. Second, it provides that one of the three commissioners of the Public Service Commission be designated as that Public Interest Commissioner. That is to say, they would receive complaints of wrongful acts and to take whatever action were required. Third, the bill provides that retaliatory action taken against the whistle-blower would be forbidden by statutory law, and a mechanism is provided in the bill for redressing any such retaliation.
In terms of the framework of the bill, clause 2 outlines the purpose of the bill, and herein the education function is described. As well, the designated Commissioner of the Public Service Commission is established as the one to whom complaints will be directed. Finally, the purpose of the protection of public servants from reprisals is set forth in that clause. The commissioner, designated by the Governor in Council to serve as the Public Interest Commissioner, is given powers to investigate as found in the Inquiries Act. The Public Interest Commissioner is to receive complaints of wrongful acts and may make such information as is received public if in the commissioner's opinion it is in the public interest to do so. The commissioner would have the power to disclose to the Attorney General of Canada, or any of the provinces, information relating to the commission of an offence under any law enforced in Canada.
The education function of the commissioner is contained in clause 8, which states:
The Commissioner shall promote ethical practices in the Public Service workplace and a positive environment for giving notice of wrongdoing, by disseminating knowledge of this Act and information about its purposes and processes and by such other means as seem fit to the Commissioner.
This should help members of the Public Service of Canada at all levels to concentrate on ethical practices resulting in a more harmonious, effective and focused workplace.
Clauses 9 to 17 of the bill set out the mechanisms under which a complaint of wrongdoing is to be made and investigated. A complaint is first filed with the commissioner. The bill makes it clear that a complaint made in good faith and on the basis of reasonable leave is not a breach of any oath of office or any breach of duty that the given public servant may have taken. The commissioner, under clause 13, may accept the complaint under certain circumstances and cause an investigation of the complaint, if the investigation meets certain criteria, and prepare a written report of findings and recommendations. This report is then sent to the minister responsible for the employee against whom the complaint was made, whereby responsibility at the departmental or agency level is maintained and undertaken. The minister must then take action and inform the commissioner of the nature of such action, or the minister may advise that no action was taken. Under certain circumstances, such as cases of emergency, the commissioner may require the President of the Treasury Board to table in Parliament an emergency report prepared by the commissioner if the commissioner believes that it is in the public interest to table such a report. The Public Service Commission's annual report to Parliament will be required to contain details of activity under the bill
Honourable senators, clauses 18 to 22 of the bill provide protection for the whistle-blowing employee against adverse action being taken because of the whistle-blowing activity. The employee has both the remedies available under this bill and all existing remedies provided in both the civil courts and in any grievance procedures. The bill would not diminish or detract from any of those pre-existing mechanisms.
In summary, the bill provides for a needed framework. At this stage, it focuses only on the public service setting and not on the private sector setting. Perhaps at some point in time one would need to address that as well. It is a start, and it is a workable approach within the Canadian context. No doubt witnesses coming before your committee will be able to make suggestions as to improvement. As sponsor of the bill, I would welcome all such suggestions.
The Chairman: Congratulations on getting your bill this far, through second reading in Chamber and now to committee.
Senator Finestone: I welcome this whistleblowing bill, senator. We needed it for many different reasons. I was quite surprised to find when we were studying Bill C-6 that clause 27 of the bill was called the whistleblowing clause. It was as if the drafters read your bill and then took it almost verbatim into Bill C-6, which I believe was passed yesterday.
Did the House of Commons pass that bill, Mr. Chairman?
The Chairman: There was a message returned to the Senate today. I assume there will be Royal Assent soon.
Senator Finestone: On the basis of your bill, Senator Kinsella, and the whistle-blowing initiative put forward in Bill C-6, what happens with your bill if they have been good enough to copy a portion of it into law? Did you happen to look at clause 27?
Senator Kinsella: No.
Senator Finestone: I have a copy here. Clause 27 reads very much the same as your bill. It states:
27.(1) Any person who...has contravened or intends to contravene a provision...may notify the Commissioner of the particulars of the matter....
Clause 27.(2) reads as follows:
The Commissioner shall keep confidential the identity of a person who has notified the Commissioner under subsection (1) and to whom an assurance of confidentiality has been provided by the Commissioner.
Those are the confidentiality aspects of this issue. Bill C-6 goes on to state that there are four or five types of prohibitions.
27.1(1) No employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that:
(a) the employee, acting in good faith and on the basis of reasonable belief, has disclosed to the Commissioner that the employer or any other person has contravened or intends to contravene a provision...;
Do you want this all read into the record?
I was quite pleasantly surprised to see that Canada had finally moved to pick up on undertakings that have been in the House of Commons. This issue may go back to 1988. I do remember similar and much-needed statutes in 1991 and 1994.
One phrase is repeated here -- "the basis of reasonable belief." I did speak to that matter when I spoke to your bill and supported your initiative in the Senate. How would you define "reasonable belief"?
Honourable senators will recall that horrible accident with NASA and the spacecraft that failed. As a matter of fact, a Canadian woman was killed. At fault were some screws and bolts, but I do not remember the specific details. Notwithstanding that, the engineers shone a light on that matter, but the other personnel at NASA did not agree and so took the shot. They had hidden the concern. With this legislation, a concern would have to be given the light of day, but on the other hand, these engineers had reasonable belief. Whistle-blowing legislation would not have necessarily covered them.
Unfortunately, there is such tremendous tension today between the civil servants, public servants. One wonders if there are negative feelings behind the notion of reasonable belief that may dilute the effort or bring about necessary sanctions.
Senator Kinsella: Your speech, Senator Finestone, at second reading debate was very thoughtful and very helpful. It is the record in your support of this attempt to find an appropriate measure and an appropriate model to deal with whistle-blowing in our modern, 21st century public service. There is a serious gap there, and we must come up with the correct mechanism. I appreciate your support for this bill. Your experience is helpful, as you have seen bills in the other place that attempted to move the bar a little along the way. However, we still do not have the overall legislative provision that this bill seeks to remedy.
A number of other pieces of legislation have whistle-blowing provisions. For example, our environmental act contains such a provision. There may be others along the way as well. However, what we do not have is a general mechanism. In so many other fields, human rights for example, the fact that we were able to have a Human Rights Act that provided a general provision for dealing with human rights and equality rights issues did not mean that we no longer maintained anti-discrimination provisions in the Labour Code or in other pieces of legislation. We want to ensure that they are all moving in the same direction.
On the point of reasonable belief, to make this mechanism work, all the players and participates must agree as to what a reasonable person would consider not vexatious and not frivolous. We do not want to muddle the operation of an agency or department. This is serious stuff. This is about people who, as a result of their oath of office or the fact that they do participate in the delivery of public programs to our citizenry, are special people. They are doing special work because it is work for the people of Canada. On a reasonable basis, not on a frivolous basis, problems are apprehended. People do not always have all the information, but we do not live in a perfect world where we all have all of the information. It is necessary to allow for people to make an assessment in good faith on a reasonable basis that something does not look right. Hence, they may need to blow the whistle. They need to be able to go to someone with a complaint.
Senator Finestone: Do you have a concern that someone could be unfairly targeted and punished in a way that is subtle but could in the end cause them to leave or lose their livelihood because there is a difference in the values given and the ethical considerations under the notion of reasonable belief?
Senator Kinsella: This is precisely why we need a process. We need that process to provide for a number of steps. As I say, the independent Public Interest Commissioner, having examined a complaint, may find that it is without foundation. I chose the phrase "Public Interest Commissioner" after a great deal of thought. I wanted to focus on the fact that the commissioner is intervening in the public interest. It is in the public interest that wrongdoing be stopped. It is equally in the public interest that all people be treated fairly. If a manager, for example, is the target of a complaint or an allegation that is frivolous or without foundation, then it is equally important to protect that public servant. The manager is also a public servant. It is only on the basis of these principles can this type of process, in my judgment, actually work.
Senator Finestone: Within the educational portfolio or responsibility you have given them, which is certainly very important, I gather that you would extend public values and ethics to include the Public Interest Commissioner. I have one last concern about that.
We know that there is a backlog in the complaints that are taken to the Human Rights Commission. One of the major causes for that is the lack of funding. Would we be enabling the public process if we put another Public Interest Commissioner in place without ensuring that there are the finances to back it in public will?
Senator Kinsella: I was involved in the drafting, at the officials level, of the Canadian Human Rights Act. I was consultant for the Department of the Secretary of State. At that time, Former Justice Gérard La Forest was an Assistant Deputy Minister in the Department of Justice. As this bill is drafted, my advice is to make sure that we come up with something that will not become bureaucratized, that will not become overly legalistic machinery that will grind itself down. If that happens, it will not be able to handle all of the complaints with all of these processes.
At that time, my interest was in seeing the Human Rights Commission as more of a human relations commission with a focus on education. I did not win the day on that one, and unfortunately what I feared has occurred. I am glad that Mr. Justice La Forest is on the three person commission that is reviewing the Human Rights Act. He was there at the other end.
Your point is very well taken. It is important not to put a mechanism in place that will become bureaucratized, legalistic, and grind itself to a halt. The more public awareness that there is -- the more education, the more sharing of what we are doing, and the more understanding of the values that undergird what we are doing as public servants -- minimizes this quite significantly.
Will it cost some money to do this? I do not know how busy the three members of the Public Service Commission are, but I do know they have a significant budget. I believe that they could carry out this responsibility under their present mode of operation, but maybe down the road it would require extra funds. I do not know. It will be important for this honourable committee to perhaps canvas that point with members of the commission.
Senator Bolduc: In this act, "employee" means a person who is an employee under the Public Service Employment Act. Do you remember if that covers the management category?
Senator Kinsella: Yes.
Senator Bolduc: Up to the top level, or at least to the intermediary management?
Senator Kinsella: I think so.
Senator Bolduc: There are many levels in management, and most of the time those who are very much involved in the type of things we are looking at here are people at the intermediate level and higher. It is very important that you include others. If you only have the unionized employees, it may be efficient for that group, but it is not efficient for the rest.
In Ontario they have a law which, as I understand it, is not enforced. They use the expression "council". It is not the Public Service Commissioner, it is a kind of legislative person or lawyer who will look at those situations.
In England, they have decided to give that responsibility to a group of people who will be defined through an Order in Council that designed the agency's ability to do that.
You have opted for the Public Service Commission. Is it because in New Brunswick it is the Public Service Commissioner who has that responsibility? What I am getting at is that the size of the thing may change the person to whom the people could give their complaint.
I am not sure the Public Service Commission is the right agency for that, or that the Public Service Commissioner is the right man for doing that. The other responsibilities are in a wide variety of things. I would like to hear your point of view.
Senator Kinsella: Any time Senator Bolduc speaks of the public service, we all listen very carefully. There is no one in this town with more experience in this area than Senator Bolduc. I did look at the Ontario legislation, and I also looked the Australian one. I came to the conclusion that, if my focus in part was on the promotion of a value-based, value-driven, and ethical public service, part of the principal mandate of the Public Service Commission is to ensure that hiring practices are based on competence. It is done on an ethical basis. They are responsible for ensuring that the merit principle is the principle upon which our public service operates in terms of staffing and so on.
In a sense, this is a continuation of maintaining that merit-based, ethical public service. It cannot stop once the hiring has occurred -- it must be ongoing. Again, the other models I looked at seem to have been putting the accent more on the adversarial consideration, but I was more concerned with the problem solving consideration.
The other consideration is that I wanted to see whether we could come up with a situation in which the problems could be solved within the organization. If the organization or the department itself sees it as its own responsibility, under the supervision of the commission, to operate ethically and to operate on a value basis, it will want to be a willing partner in solving the problems. The whistle-blower helps in the process, because if the whistle-blower is blowing the whistle, 9 times out of 10 he or she is blowing the whistle on a problem. Who is better suited to solve the problem than the people in the agency itself <#0107> this moves the whole dynamic out of an adversarial stance.
Senator Bolduc: I can understand that.
I suspect that is why, in England, they talk most of the time about the employer and somebody in the hierarchy. When you go to a civil service commission you move somewhat outside of the hierarchy. The second aspect is that, although we do not want to have a judiciary type of thing, the procedure must be very tight. Otherwise, the whistle-blower will be caught up and his or her own rights will not be protected. It is very important.
That is why I thought that, in the Ontario example, it was not so bad to have a lawyer responsible for that, or someone with a good legal background. It is very serious. We are talking about wrongful acts here.
Senator Kinsella: If there is an apprehension of illegality in the process, we provide that the commissioner is able to go to the Attorney General of a province -- if it is covered by the Attorney General of the province -- or to the Attorney General of Canada, if that is the appropriate law enforcement entity.
Senator Bolduc: The public service is defined as being that part of the Public Service of Canada to which the Public Service Staff Relations Act applies -- so the RCMP is not covered by your proposition. Is it because of the nature of their work or the nature of their procedures?
Senator Kinsella: It was far more Machiavellian than that. I thought that, if we started with limiting the definition to those parts of the public service to which the Public Service Staff Relations Act applies, and if this committee, with the help of the witnesses, were able to shape this bill and improve it in the direction that the committee thinks it could be improved -- in other words if we could get this right, then the inclusion of others would be easy. I did not want to bite off more than we could chew, so that is what motivated me to start with this.
Senator Stratton: At the federal level, this bill would protect public service employees but not parliamentary employees. Why?
Senator Kinsella: I would have no difficulty if this committee wanted to make amendments to include members and employees of Parliament. If we have a system and a process and a mechanism that is embraced by all in terms of dealing with the public service, it would then be simple to add on our parliamentary employees, the RCMP, or others. I did not focus on excluding anyone, including the private sector.
Senator Stratton: I want to go to Page 6 of the bill, under "false statements", where it reads:
12.(2): The Commissioner may determine that a notice that contains any statement that the employee knew to be false or misleading at the time it was made was not given in good faith.
Could you explain what happens to someone who does something like that? You might have an employee who is vengeful or jealous and who may do something that is totally incorrect. What is the punishment for the complainant?
Senator Kinsella: The commissioner does not have to proceed.
Senator Stratton: You would think that the employee would recognize the seriousness of this and would not do something mean and vexatious.
Senator Kinsella: Exactly.
Senator Stratton: Nothing happens to the employee should she or he do something of that manner. That is my concern. Does this open the door to allowing that kind of frivolous charge?
Senator Kinsella: It does the opposite. Indeed, it helps to make the point. That is, you need a process and a mechanism so that vexatious complaints or complaints based on falsehoods are not brought forward into the open where other people are injured and an organization or a department could be injured.
Instead, what happens is that, if the commissioner who is dealing with this on a confidential basis ascertains that this allegation is based on a falsehood, the commissioner says the case is without foundation and it goes no further. By having this in-house process, others, including third parties, are not injured.
Senator Stratton: Are you at all concerned that, with this bill, the government is trying to have the senior levels of the civil service take more risk? The nature of management now is that you take more risk. Are you afraid that this would lead to bureaucratization, where they would be afraid to take those risks on the basis that someone might believe the manager is doing something wrong?
Senator Kinsella: There has been a culture change in the public service in the last 15 or 20 years, and it has been all for the good. There is also great sensitivity to having our public service operate based on ethics and values.
The Clerk of the Privy Council struck a task force, chaired by former Deputy Minister John Tait, and hopefully this committee will hear from them. There is a group in the Treasury Board that deals with ethics issues. I think our senior managers in the public service are more apt, or more encouraged, to be open and responsive to modern day challenges, which might be defined in terms of the fact that, yes, they need to be able to take more risks. They should be able to take these risks knowing that if something is not working right, and if this new idea might cause unethical conduct, then people in the organization would say they will not do that. In other words, there will be more openness and readiness to say that an idea might be good, but it is not right.
If this cultural change and machinery are not dealt with in the development of departmental procedures or whatever, they could lead to an in-house complaint going to the commissioner, and then back to the department. The department would then say, "Well, people have seen that this is unethical. We cannot go this way."
Who should change it? In my view, the department should change it. The agency should change it. The Public Service Commissioner or the Public Interest Commissioner will not be running the departments. Ideally, the departments will be solving their problems with their own people. At the same time, it is necessary to protect that individual public servant from any kind of retaliation, and that is why confidentiality is key.
The Chairman: We make a practice here of inviting the sponsor of a bill -- the minister in the case of a government bill -- to be the opening and closing witness. We will therefore give you an opportunity to come back after all the other witnesses have been heard. You may wish to make a final summation for us.
Our next witness is Mr. Rubin Friedman, who is here in his capacity as a private individual. He does not represent any particular organization. Welcome Mr. Friedman, and please proceed.
Mr. Rubin Friedman, as an individual: I am very pleased to have this opportunity to address you on the issue of whistle-blowing legislation. This is a very important issue for the future of the public service and for the direction in which our whole political culture is flowing.
My interest in this legislation stems from a number of sources. I was a public servant for over 20 years, during which time I held a number of positions where I worked closely with senior managers. For about half a decade I was a junior senior manager myself. Today, some of my best friends are still senior managers in the public service.
For the past 20 years I have been working on issues relating to human rights, harassment, and the difficulties involved in dealing with such matters through the regular chain of command. First, in the area of multiculturalism, promoting institutional change to be open to diversity, and then when I worked for the B'nai Brith Canada and its league of human rights, I had the opportunity to deal with many individuals who complained of harassment and discrimination as well as of systemic problems in dealing with racism.
When we participated in the inquiry on Somalia, it became clear that the systemic and structural realities of the Armed Forces and the Department of National Defence made it even more difficult to deal effectively with racism.
For the past two and a half years, I have been President of the National Capital Alliance on Race Relations, an organization which has successfully challenged six systemic racism cases at Health Canada. We continue to work with them on this issue even while challenging them whenever individual cases of alleged racism arise. Through my experience, I have become fairly familiar with the nature of situations that arise where people do make allegations of wrongdoing and the kind of interaction which results.
In addition, I have had the opportunity to do some of my own research on whistle-blowing legislation because of the parallels between harassment of whistle-blowers and systemic racism. If you look at it objectively, as soon as an employee complains of racism, that employee becomes, in effect, a whistle-blower in need of protection from retaliation. As soon as you make a complaint of racism against your manager or your colleague, you have made a public statement and you are immediately subject to pressure, harassment, or retaliation from those who would rather that you kept quiet.
This is why human rights acts in Canada include the power to issue contempt citations for those who retaliate against employees who make good faith complaints. It would be instructive to look into whether people who have had a longstanding or high profile human rights complaint against an employer are, in fact, promoted. I asked representatives of the public service unions here to determine the promotion rate for those who file grievances in the public service compared to those who do not. That would give us an idea whether there is, in fact, a real problem.
Loyalty and discretion have long been valued qualities in the public service. It is hard to imagine any legislation that will automatically turn whistle-blowers into heroes in the eyes of senior managers, even when the whistle-blowers are proven correct. Loyalty and discretion are valued on many different levels. On one level, these are the qualities that senior bureaucrats need to have themselves. They work for political masters of different stripes, and they are expected to serve all equally well. They are privy to sensitive information, and they have taken an oath not to divulge it.
Our parliamentary system has operated on the assumption that the public service provides independent and objective advice, but carries out the political will of the government and of Parliament. Ministers of the Crown are answerable to Parliament for programs and policies, not public servants. That is one of the challenges for whistle-blowing in our system of government.
In the American system, which is basically a system of checks and balances between different entities, the executive and legislative arms between the two houses and the judiciary all have a common interest in getting at the same form of truth. Our system is adversarial. People vote according to their party loyalty. As soon as someone blows the whistle in Canada, they automatically fall into the camp of the opposition. There is a different set of circumstances in our country, and one which we must be cognizant of when we look at whistle-blowing legislation.
I understand the case law presently to operate as follows: Whistle-blowers are protected when they are proven to be right, when they went through all the official channels first to voice their concerns, and when they went only so far in their opposition as was reasonable under the circumstances, so that those who are concerned with the health and safety of Canadians are given more latitude than those who are concerned with simple mismanagement. They are also protected if they do not have a relationship of privilege with anyone they are blowing the whistle on, and they cannot break any oaths of secrecy or any official secret restrictions.
Therefore, an employee who simply voices a reasonable suspicion based on the evidence available to him or her is not protected if his or her suspicions cannot be proven. This is a very fragile situation to be in, because public servants are employed in a capacity that does not always lend itself to forging a career in other surroundings.
It is also true that our system is currently under pressure to change. It was a very unusual occurrence when the Clerk of the Privy Council recently appeared before a parliamentary committee. This precedent seems likely to be repeated. More and more ministers who are responsible for large portfolios do not have the expertise and information to answer detailed questions. Public servants of various levels are being called upon to provide background information to media or Parliament, and each of their statements is subject to the kind of partisan debate and interpretation that arises from our adversarial system.
It has become almost acceptable to speak of ministers having to account for their department's actions to Parliament, but admitting that they do not have to take the full blame for the errors committed. It is becoming harder to know where the buck stops, and it is becoming harder to know where it starts. With the delegation and decentralization accompanied by deep cuts in personnel, the public service's capacity to act and to keep everyone informed of its actions has been severely affected. The choice is between offering a service or documenting the service that has already been offered, between doing the work or simply making sure everyone knows that the work has been done. It is often quite hard to do both of these things at the same time.
At the same time that this is occurring, we know that information is becoming instantly and broadly available through many channels, especially the Internet. Through the Access to Information Act, much that is available to public servants can also become available to the public. Can access to information provisions be avoided? Obviously, it is hard to remain anonymous if the whole circumstances of your case are made public.
In reviewing this legislation and the other legislation with which I have become familiar, it has become obvious to me that we are often dealing with very different kinds of situations. In areas such as the environment, health, and natural resources, experts agree on issues that the government has been called upon to regulate. There is often room for interpretation of the intent of the government and the law. While this may seem like a theoretical issue, in practice such differences in interpretation can lead one to different conclusions about, for instance, the safety of a drug or the impact of an environmental intervention. In cases of fraud and misappropriation of funds, the issue is who to tell about it. Reporting up the line may involve reporting to those who are committing the crimes, or who are consciously ignoring them. Again, aside from informing the police, public servants do not have an understanding of how to proceed.
Without specific whistle-blowing protection, individuals who make such allegations have very little protection under common law while they wait for their allegations to be proven. We all know that such cases can take years to resolve.
In cases of harassment and discrimination, we know there are established procedures for grievances and for human rights complaints. Again, many of these cases take years. Protection from retaliation when such complaints have been made continues to be an issue. In the case of sharing information, and inadvertently breaching a confidence, the government currently insists that it is building partnerships with a range of organizations from private business and other governments to voluntary groups. In working closely with this range of individuals, it becomes increasingly difficult to know where to draw the line on what can be discussed and what constitutes inappropriate disclosure.
I believe, therefore, that there is a strong need to have a set of guidelines and principles on disclosure of information for public servants to refer to -- standard procedures for reporting fraud or misappropriation of funds, and for investigating allegations of wrongdoing. These must be clearly communicated to everyone. As part of those procedures, there must be a way of reporting the allegations without going through the chain of command, especially if the chain of command is involved in the fraud or involved in ignoring it. Mechanisms which allow complaints of harassment or discrimination also must allow for ways of bypassing managers in the hierarchy, who are often the object of such complaints.
Finally, anyone making complaints or allegations based on reasonable belief needs clear protection under the law while his or her allegations are being investigated. We also must establish redress mechanisms if retaliation occurs or is alleged to have occurred because of allegations made in good faith and on reasonable grounds. We need to have much more information and education for public servants and managers to ensure that all are aware of the principles on which they are being called to operate.
I see this bill as being both too broad and too narrow. Its goal is to set up a mechanism whereby a complaint for any wrongdoing or abuse throughout the entire public service would be directed to the Public Interest Commissioner. One must only look at the number of grievances in various departments to realize that it is very possible for such an individual to be inundated with complaints. The scope of the kinds of complaints that can be directed to the Public Interest Commissioner is very broad under this legislation.
I would like to draw your attention to the fact that the legislation in the United States and the legislation in Great Britain are not about mechanisms for investigating initial allegations. They are about mechanisms for investigating allegations of retaliation against whistle-blowers. They have a very specific focus. Even in the United States, where the Office of the Special Council has been set up to protect whistle-blowers, the primary purpose is to protect people who have already blown the whistle and to protect people from retaliation. The office acts as an informal channel to refer people to others in terms of the initial allegation of wrongdoing, but its primary function is not the investigation of such wrongdoing in the first place.
We would be well-advised to think of this whole area as divided up into several specific domains. One domain concerns initial allegations mechanisms. We need to have a clear concept of all the mechanisms that currently exist and how they relate to each other. I have already mentioned the Human Rights Commission. We have talked about the police, and about grievances. A whole host of mechanisms currently exist. Many people are not satisfied with them because of the time that these processes take.
Second, we need the protection mechanisms, elements of the law which must specify the penalties for retaliation while good faith allegations are being investigated, and we also need some concept of penalties for any allegation made in bad faith or for frivolous reasons. I would like to come back to that later when we talk about the notion of good faith and reasonableness.
Third, we have redress mechanisms. Over and above any mechanisms set up to deal with initial allegations, there must be an additional way of investigating the allegations of retaliation. There is an investigation of the original wrongdoing, and while that occurs, someone makes an allegation that there is retaliation. You must have an investigation of that, and the two are not always the same investigation.
Fourth is public education mechanisms. We have all talked about the importance of that. I strongly support what Senator Kinsella had to say on that point. That is, the importance of, wherever possible, using public education to promote awareness and appropriate behaviour in the first place. I am a bit conservative that way. It is just as important for one to carry out one's responsibilities as it is to demand rights, because, if you carry out your responsibilities, you will be according the appropriate rights to other people.
Taking these considerations into account, I think Bill S-13 is an excellent start for whistle-blowing legislation. However, one must look at these areas more closely. As I described, in some ways it is too broad. It may be more appropriate for the Public Interest Commissioner to be primarily concerned with investigating allegations of retaliation, as opposed to trying to investigate every complaint of wrongdoing in the public service.
It should be clear, and information should be available on the different kinds of mechanisms that departments currently have. That is also an area where significant reform is needed. The way departments handle complaints is part of the problem. There are no easy mechanisms to deal with complaints, other than through legal channels. The general reaction of management when a complaint is made is to circle the wagons. Sometimes this is helpful, and sometimes it is not.
The Public Interest Commissioner should be an independent entity which reports as directly as possible to Parliament under our system. There are certain constitutional restraints in this regard, but it is important that, if a public interest commission is identified and set up, there be a separate budget item in the budget to deal with it. Otherwise, as we know from other experiences with commissions of inquiry or human rights commissions, governments can control what actually occurs by cutting the funding. If there is no funding, nothing is accomplished.
I would like to deal with the issues of reasonableness and good faith. This is an issue for our system. In the United States, the legislation is so broad that an allegation made to just about anyone in any circumstance is considered to be a legitimate allegation if it is done based on reasonable beliefs. In the legislation in Great Britain, the avenues for making complaints are very limited and specified. In our system, we would probably favour something that closely resembles the British legislation rather than the American one, but it must be specified in the law.
Whatever approach is chosen, it needs to be fleshed out in the legislation to ensure that the intentions of the legislation are clear. We need to define the avenues and to followed, what is reasonable, and what is good faith. That must be put into the law itself. Otherwise, it would be open to such wide interpretation that you could have either of two extremes. You could either have everyone in the public service going to the Public Interest Commissioner, or you could have no one going to the Public Interest Commissioner. It would depend on how you defined reasonable and good faith, because there are sanctions in your legislation for people who make false statements in this process.
Sometimes one can make a false statement because one has been given the wrong information, and then it comes down to a judgment of the original intent of the individual or individuals in making that statement. Was the false statement made on purpose, or because they themselves had been misled? That kind of thing needs to be fleshed out.
I do not see how we will avoid having whistle-blowing legislation. On the one hand, it is very crucial and essential to the operation of the public service, and on the other hand, the United States and Great Britain have already passed legislation.
The Chairman: Why do you suppose that, in the definition section, Senator Kinsella included, as a wrongful act or omission, an act or omission that is an offence against any law enforced in Canada? Why should a wrongful act or omission of that kind be subject to the whistle-blowing process? Surely, if a reasonable person has a reasonable belief that an offence has been committed against any law enforced in Canada, the place to go is to the police, is it not?
Mr. Friedman: I would assume that is the avenue to follow. However, there are cases where one does not know whether it constitutes an offence or not. There are things that some people can interpret as mismanagement as opposed to fraud. So, there is an initial stage in terms of the investigation when one is really not sure what it is. A lot of people would say that, if you are strongly suspicious, you should go to the police. I do not think it is commonly communicated in the public service what such things look like, or what the procedures to follow are.
Second, during the investigation of the allegation, the person who made the allegation receives no protection whatsoever under current law. The person ultimately will be protected if the allegation proves to be true. If the allegation proves to be false, protection is not as strong in Canada at this point. In countries such as the United States, there is no problem as long as the original belief was reasonable, even if the allegation proves to be false. That is not necessarily the case in Canada.
The Chairman: You do want to give people pause before they allege that somebody else is acting in a criminal or illegal fashion. Are we about to set up the Public Interest Commissioner as some kind of an investigator to pursue hunches that I may have on the basis of circumstantial evidence? The other point is that, if the Public Interest Commissioner concludes -- and this may be a reason why he should be a person with some legal training -- that there is some prima facie case, that a law is being infringed, the Public Interest Commissioner should stop right there and turn it over to the law enforcement authorities, correct?
Mr. Friedman: There are a host of established mechanisms for investigating initial allegations of wrongdoing or abuse. There are a number of them in the public service, through the police, through the Human Rights Commissions, through grievance procedures. I am not sure it is helpful to have the Public Interest Commissioner either repeat or replace those mechanisms. Rather, the Public Interest Commissioner should focus on one specific thing, namely allegations that an individual who has previously made a good faith allegation is being subjected to retaliation. The Public Interest Commissioner should focus on allegations of retaliation, not just all allegations of wrongdoing.
The Chairman: Why do you suppose Senator Kinsella proposes to shield complainants from any action under libel and slander? In order to make a libel or slander case stick you must be able to demonstrate malice anyway, right?
Mr. Friedman: I am not familiar enough with all of the aspects. Sometimes it is enough to demonstrate that the statement has been false, and then it is a question of whether the person is willing to withdraw the statement.
Senator Finestone: This is an important piece of legislation. I was pleased to note that there would be finally some way in which there could be protection for both sides.
You talk about retaliation against the whistle-blowers, and that is one thing that needs to be dealt with, but I do not see it as the only issue. I have the sense that you feel the bill is not broad enough. My sense, however, was that it is an overarching piece of legislation that could be a template against which you could measure whether you were carrying out your duties effectively and in the best interests of our country.
You do bring up some important information. Retaliation against whistle-blowers could be read into the process that has been outlined. Perhaps I am wrong, but I do feel that way.
Mr. Friedman: I believe that protection of whistle-blowers is covered by what is in the act. What I am saying, though, is not that it is too narrow, but that it is too broad. It allows anyone in the public service with a complaint to forward it to the Public Interest Commissioner.
Senator Finestone: If the complaint is racism or sexism or gay bashing, access to the human rights system would be the correct approach?
Mr. Friedman: Right.
Senator Finestone: In a sense, what you are looking at is targeted redress for abuse of some kind, or mismanagement of some kind?
Mr. Friedman: Yes.
Senator Finestone: I am not sure whether you go through the broad scale of initial allegations mechanism, protection mechanisms, penalty mechanisms, redress mechanisms, and the investigations process. If that is not to be accomplished, if this is a basic vision, it should be done through regulation. That is, this is the overarching bill, and the regulations would cover the issues that you feel are important to have more clearly defined. Perhaps they would come out of the educational format, which is, I feel, the basis of this whistleblowing bill.
Mr. Friedman: It is an interesting concept.
If I understand the bill correctly, anyone making a complaint would go to the Public Interest Commissioner, who would simply take that complaint and refer it back to the department. The difference is that, through that process, the identity of the person making the allegation would be protected.
This is an important point, and one that is often missing from current complaints procedures; namely, that there is a way of coming outside the chain of command to bring the matter to a higher level, and an individual would not necessarily be punished for doing that. As you know, going outside the chain of command is often viewed negatively in the public service. That is the primary benefit of having this kind of mechanism in place. I am not sure that one must have recourse to it in every case where an employee has a complaint. I am looking for a way of more clearly directing people.
Senator Finestone: In a sense, you want a triage?
Mr. Friedman: Yes.
Senator Finestone: The way this bill is presently drafted, under clause 14 you have the whole question of investigation and report. It says:
14.(1)The Commissioner shall investigate a notice accepted under section 13 and, subject to subsection (2), shall prepare a written report of findings and recommendations.
(2)The Commissioner is not required to prepare a report if the Commissioner is satisfied that
(a) the employee ought to first exhaust review procedures otherwise available;
Therefore, when I talked about racism, sexism or any of those issues, there are other avenues that can be pursued. If it is a criminal act, there are other avenues. Clause 14.(2)(a) would answer part of the question which you proposed, and 14.(2)(b) says:
(b) the matter could more appropriately be dealt with, initially or completely, by means of a procedure provided for under a law in force in Canada other than this Act; or
(c) the length of time that has elapsed between when the wrongful act or omission that is the subject-matter of the notice occurred and the date when the notice was filed is such that a report would not serve a useful purpose.
In a sense, the whole process of the reporting mechanism is in here. Perhaps the regulations would more clearly define it. When they are developing the educational tool, which would have to be presented and carried through in a proper manner, all of these important points would be addressed.
Mr. Friedman: I would like this to be more fleshed out. Some of these issues can no doubt be dealt with through the regulations that are enabled by the act itself.
Senator Finestone: Do you see this as a good bill which could be moved forward as something which both the federal and provincial governments could take as a model? Could we feel comfortable that Great Britain, Australia and the United States are not necessarily that far ahead of us?
Mr. Friedman: It is not a question of being ahead. It is that they have gone in directions that are very suitable to their systems. It is not certain that any of those models is directly applicable to our situation. I strongly support the notion that Senator Kinsella presented before of looking for ways to resolve disputes before they become official. I am not sure that the Public Interest Commissioner can do that. As Senator Kinsella said, it must be done within the department. Are departments currently equipped to do that? I am not sure.
[Translation]
Senator Bolduc: My main question, following the issue raised by Senator Kinsella, concerns the volume. The public service in New Brunswick is much smaller, so the Public Service Commissioner can take care of it. That is the management hierarchy in Britain because the public service is much larger. There are 500,000 people, maybe more. A single person cannot manage that.
In Canada, the Armed Forces and the police are not included, but there are 150,000 or 200,000 people covered. Could we come up with a formula similar to that of the commissioner? The public service idea is not all that bad: they have a good understanding of administration, and public servants are comfortable with the commission. The commission is not a body that is opposed to public servants. It hires and promotes them. That is where I had some doubt. Could we not come up with some kind of intermediary within the department?
Senator Kinsella came up with a good formula in saying that the commissioner would have all the data. He could look at what he needs to right away and solve 50 to 80 per cent of the problems that are not serious. In that light, we should perhaps use that procedure or strategy. A few years down the road, we could include a revision clause.
In Great Britain, for example, it has only existed for two or three years, so we do not know much about the British experience.
The system is different in the United States. There is not one boss who oversees the system. Each department is an authority in its own right. It is so big, that it is not comparable.
Since clause 14 contains the possibility of diluting things, and does not exclude the other procedures you mentioned earlier, it would seem wise to me to make an attempt. I will continue to have some doubt. If we were to designate a Public Service Commissioner or someone who could be designated by him with moral authority, that person would have the same moral authority as a public service commissioner. That existed at the provincial level. When grievances arose, they quickly realized that three commissioners could not deal with all of the grievances.
Mr. Friedman: What is not clear in the bill is how much time the commissioner will spend examining the cases. Will he be the one doing the questioning? Who will conduct the investigation? If the commissioner's role is to assess the data collected, that is one thing, but who will do the data collection? Where will the data come from? The clear answer to that is not contained in the bill.
Senator Bolduc: The solution we came up with was to appoint ad hoc commissioners with the same training. Training is required. I emphasize the need for intensive and special training. Public service commissioners are not necessarily appointed for that. They are senior officials with general training.
In this case we are dealing with something specific. The commissioner himself would have to have legal training. If he cannot carry out the duties himself, other ad hoc members with that type of expertise should be appointed. The Act contains mechanisms for reconciliation in the area of international trade relations; when panels are set up, they must comprise people who have training, either judges or lawyers. In this case, it is serious, because we are dealing with people who blow the whistle on abuse in the chain of command. In France, they have another method. The inspector does not come under the directors general but under the minister directly. We do not have that situation in Canada.
As for the rest, the conditions regarding whistle-blowing, protection, mechanisms and rights for whistle-blowers are well covered.
Mr. Friedman: Thank you for giving me the opportunity to speak to you today. I wish you good luck with this bill, which I consider very important for the future of the public service.
The Chairman: Thank you for your testimony, Mr. Friedman.
[English]
The Chairman: Our next witness is Mr. Darryl Bean. I hope that the government will send somebody of comparable authority and status from the bureaucratic side to give us his or her views on this bill. Please proceed, Mr. Bean.
Mr. Darryl Bean, National President, Public Service Alliance of Canada: I want to take the opportunity to thank Senator Kinsella for bringing this bill forward. With me today is Steven Jelly, who is the Executive Assistant to the Public Service Alliance Executive Committee.
The Public Service Alliance of Canada welcomes this opportunity to comment on Bill S-13, the Public Service Whistleblowing Act. We have been actively advocating whistle-blowing legislation at the federal, provincial and international levels for more than three decades. As a union that represents the vast majority of the federal government's workforce, we have been required to defend whistle-blowers during adjudication hearings and in the courts.
As my office indicated to the clerk of your committee last week, we will not be in a position to provide a full submission to you for a few days. Our problem in preparing a submission for your consideration relates to the fact that we need to review a relatively large number of adjudication cases and court actions in order to provide you with a representative sample of whistle-blowing situations and their outcomes.
We take whistle-blowing very seriously because it has had a devastating impact on a number of individual federal government workers. Moreover, the lack of legislation is arguably the most serious deficiency in the instruments that define the Canadian democracy. The fact that, in the absence of legislative protection, whistle-blowers still exist at the federal level in Canada, in my view, testifies to the integrity of the public service workers.
Over the past 30 years, we have secured the support of our members, the majority of the Canadian public, and all political parties, for whistle-blowing legislation. While Canadian parliaments have enacted legislation protecting whistle-blowers in certain specific circumstances in jurisdictions, they have failed to extend that principle to the federal public service as a whole, despite what our experience indicates is very limited protection in common law.
Finally, Canada stands more or less in isolation from other major democratic states when it comes to whistle-blowing legislation. Given the wealth of information on whistle-blowing legislation in other jurisdictions, it should be easy for Canadian legislators to enact legislation without fearing that the protection afforded whistle-blowers will lead to complaints made in bad faith. On the contrary, we fully expect that our members and other federal public service workers will use the protection proposed in Bill S-13 with care and in the public interest.
In attempting to assist your committee, we should like to place on the record some of our experiences protecting whistle-blowers, as well as comments on some of the specific provisions of Bill S-13. By their very nature, whistle-blowers who are acting in good faith are defending democracy. As a result, we believe that society has an obligation to protect the employment and economic security of whistle-blowers. Unfortunately, to the extent that courts have intervened in whistle-blower cases, the results have been mixed to say the least.
While it is arguably not a whistle-blowing case, the firing of Revenue Canada employee Neil Fraser on February 23, 1982 helped set some guidelines for defining whistle-blowing activities in the absence of a specific statutory whistle-blowing protection. Fraser's firing followed a torturous course through the public service appeal and adjudication process, and ultimately was concluded in a judgment rendered on December 10, 1985 by the Supreme Court.
While the Supreme Court upheld Fraser's dismissal, the decision stands as one of the most significant clarifications of what a federal government worker can say and do. This clarification was best reflected by the court when it said,
This would be appropriate if, for example, the government were engaged in illegal acts, or its policy jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. By having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major government policies.
After Fraser, federal public service workers have interpreted their whistle-blowing rights in vastly different ways, and with good reason. Almost four years elapsed from the date that Fraser was fired until the Supreme Court upheld his dismissal. In addition to the severe financial hardship the whistle-blower faces as a result of lengthy delays, the emotional strain clearly results in people thinking twice before taking on the same challenge, especially with unpredictable results that may be many years away. Others have done so with mixed results. When we table our formal submission, we will cite specific examples and circumstances in more detail. For the time being, we will focus on a few significant cases.
The most significant case we have been involved in concerned an immigration worker in Toronto. This worker was fired on February 6, 1987 for releasing information which suggested the departmental policy could threaten the safety of Canadians by allowing known criminals to enter Canada. Three aspects of this case are significant, and particularly interesting in the context of any discussion on whistle-blowing legislation. First, the PSAC member released this information to a member of Parliament, raising the question as to whether or not an MP is a third party. The employee was fired when the MP, not the employer, went public with the information.
Second, the incident clearly falls within the Supreme Court parameters for acceptable whistle-blowing. That is, the government's policy, "jeopardized the life, health or safety of the public servants or others".
Third, despite this, an adjudicator saw fit to substitute a nine-month suspension for the dismissal. This was done, in part, because the public sector worker in question took his concerns to a third party, an MP, without allowing the department a sufficient amount of time to adequately respond.
In a second case in May, 1997, a PSAC member was suspended for two days for public declarations that he made during a union day of action. While the quantum of the discipline was not particularly onerous, the case was noteworthy because the individual was a union activist who was effectively gagged for the two and a half years that it took his grievance to reach a final determination. Hence, the department carried all the cards. It could -- and did -- impose discipline, knowing that its actions would silence the worker in question and perhaps many others, even though, in the final analysis, it withdrew the discipline just prior to the adjudication hearings.
The dilemma facing whistle-blowers who are protected only by common law has been what they can say, and to whom they can say it. In the immigration case outlined above, the Public Service Staff Relations Board concluded that the discipline was in order because the disciplined employee had not given the department a sufficient amount of time to respond to the problem. How much time is appropriate? What protections from sanctions are available during that time?
From our perspective, a more pressing concern is that departments have a history, albeit one that is hard to prove, of penalizing federal workers who question policies and practices. Hence, while someone can identify an issue which he or she believes to be detrimental to the public interest, he or she can be disciplined or otherwise adversely affected.
For example, PSAC is currently dealing with a situation within HRDC related to the grants and contributions controversy. In this case, a PSAC member has alleged to us that his job security, reputation and opportunities for career advancement have been jeopardized as a consequence of complaints that he made to various levels of management within HRDC since 1996.
The events that have given rise to the HRDC controversy occurred at the same time that the government was engaged in a protracted downsizing exercise, so it would have proved difficult to determine whether the employees declared effective or surplus are so declared for legitimate reasons or as an indirect penalty for blowing the whistle internally. In fact, a recent survey of HRDC employees indicates that only three in 10 believe that they can raise issues of this nature within the department without fear of some kind of retaliatory action.
Does Bill S-13 do the job? We have a few specific observations on this. The first question that any legislation protecting whistle-blowers needs to address is to whom complaints may be made. Bill S-13 proposes that the existing powers granted to the commissioner by the Public Service Employment Act make the Public Service Commission the appropriate venue.
PSAC believes that existing agencies, including the Public Service Commission and the Officer of the Auditor General, have corporate cultures and relationships with the public service which make them less desirable than a new, independently created organization or ombudsperson to deal expressly and explicitly with the whistle-blowing. That said, if an existing organization is to be mandated to hear whistle-blowing complaints, we believe that the Information Commissioner of Canada or the Privacy Commissioner of Canada are better placed than either the Public Service Commission or the Auditor General.
We believe whistle-blowing legislation must address confidentiality. Bill S-13 addresses this complex issue in a way that could be improved upon. Under clause 9.(1)(b), a person alleging a wrongful act or omission may request that their identity be kept confidential with respect to the notice, in which case, the commissioner is obligated under clause 10 to keep the identity of the employee confidential.
Our problem with regards to the confidentiality really rests with the fact that, under 14.(2)(a), the commissioner is not required to prepare a report if he or she is not satisfied that the employee has exhausted all review procedures otherwise available. Hence, Bill S-13 continues the existing practice whereby whistle-blowers may be required to first bring the alleged wrongdoing or omission to the attention of departmental management. In other words, individual confidentiality will, in many cases, have been breached before the notice is given to the commissioner.
A third issue relates to the sanctions imposed under the whistle-blowing legislation. First, while it is clear under clause 19 that an employer cannot take disciplinary action against an employee who acts in good faith, some types of employer reprisal activities may be excluded. Hence, while the list identified in clause 19(2) is appropriate, we believe that the list should be identified as "any action, including disciplinary action" rather than simply "disciplinary action" as currently provided in Bill S-13.
Under the bill, only good faith notices of wrongdoing are protected. It thus follows that in some cases, individuals who file a complaint may be subject to internal action or discipline as outlined in 19.(2). Moreover, an employee who files a complaint that is subsequently determined to be in bad faith is subject to the same criminal prosecution of fines applicable to employers under clause 21 of Bill S-13.
In our experience, the vast majority of whistle-blowing situations are advanced in good faith. That said, the very threat of criminal charges will have a chilling effect on legitimate whistle-blowers, as well as on those contemplating a bad faith allegation.
This bill provides employee recourse that is essentially unchanged from existing rights. In our view, this is problematic, because a whistle-blower protected under this legislation may suffer the same financial hardship and stress that he or she currently faces. Again, this may have a chilling effect on individual workers and undermine the legitimate protection that Bill S-13 is trying to achieve. In order to prevent this, we believe that a whistle-blower must have immediate recourse to the commissioner who investigated and reported the wrongdoing in the first place.
Finally, and given the importance of whistle-blowers to democracy and their precarious state, PSAC believes that legislative action is urgently needed and should not be delayed. That said, our support for Bill S-13 hinges on two specific amendments. First, the bill must be amended to ensure that an employee who blows the whistle is not subject to criminal charges, and second, we would propose that the legislation be specifically amended to include a full parliamentary review on the first anniversary of its implementation. This would allow us -- and others -- to determine whether the specific mechanisms, prohibitions and sanctions are effective.
The Chairman: If this bill had been enforced in 1987 when this immigration case came up, it really would not have helped your man very much, would it? Could he have used this process to blow a whistle? His allegation was that the policy was endangering public safety.
Mr. Bean: That is was endangering the safety of the Canadian public.
The Chairman: Yes, but he was not alleging wrongdoing or a wrongful act or omission on the part of any particular person, was he?
Mr. Bean: He pretty well stuck with the policy. However, I would suggest that if he was able to bring a complaint forward to a commissioner who was dealing with the public interest, this might well have not led him to bring it to an MP. It would have been the policy, I agree, but it would have certainly dealt with in the public interest. He was absolutely right, the policy was allowing criminals to enter Canada. In this case, this legislation would have helped. Whether it is a total answer, I cannot be sure.
Senator Bolduc: The policy, or the application of the policy?
Mr. Bean: The policy. The policy was very poor. It allowed criminals to come to Canada without the proper checks and balances.
The Chairman: What would you say if a member of your union was about to blow a whistle on another member of your union?
Mr. Bean: If a member of our union were doing something contrary to the law of Canada in this type of situation, then I see no problem with that. We regularly investigate complaints internally, within our union, and uphold a number of them where individual members have taken inappropriate action against other members. I see nothing wrong with that.
The Chairman: A member of your union would not run afoul of the union by blowing the whistle on a brother member or sister member?
Mr. Bean: Not as I read this legislation.
Senator Bolduc: As soon as we have the transcript, I might have some questions. I understand that you will send us a formal submission.
Mr. Bean: Yes.
The Chairman: We will invite you back. Your submission will be extremely important.
Mr. Bean: We did not have the time to put together a full submission. What we did was to put forward a statement which addresses some of those examples, but I would like to address some of them in more detail. I would like to come back before the committee.
Senator Bolduc: About the parliamentary review, I hinted before that we should have it in five years. You suggested one year. That is a bit fast, but in two or three years we should have a look at what has happened. Experience will teach us about some nuances in the legislation.
Mr. Bean: We said one year, and we did that because, not only is some of this legislation relatively new, but also we are a bit concerned about some of the contents. We are fearful that, if the Public Interest Commissioner simply takes the approach that you must go through the existing internal channels, this legislation will not have worked. That is what we are afraid of. I cited some cases here, including the case of the immigration officer. He was fired. We did get his job back with a nine-month suspension -- which I do not think was justified -- but that was through arbitration.
Senator Bolduc: I was a bit surprised when you suggested that people other than the Public Interest Commissioner would be better. You gave the example of the Privacy Commissioner. Perhaps, as a former civil service commissioner, I am biased, but I find it a bit strange.
Mr. Bean: We have a bias with the Public Service Commission. I would normally have recommended the Auditor General as honest, but I met with the Auditor General on whistle-blowing legislation about 18 months ago. He made it very clear that they were not interested in taking that on, so there is not much sense in sending something to them they do not want to take on. I remembered that there is a financial problem with setting up another organization, so I was trying to find an existing one that would work.
Senator Bolduc: I do not want to defend the Public Service Commission, but the Auditor General has more of an investigative approach in terms of accounting and fund management, and this is much broader than that. I do not think that they have the appropriate training for that type of thing. The Auditor General is very good too, but within his own field.
Mr. Bean: I had to go through that rather quickly, but I would much prefer a separate organization -- like an ombudsperson -- to be set up.
PSAC does not in any way, shape or form support allowing individuals to run off to the press and just make ridiculous statements, even if they have some foundation for those statements. There is a proper procedure, and it should be followed. I do not think people should be able to run off to the press, because it is important that the integrity of the individuals against whom the accusations are made be protected, too.
Senator Bolduc: You realize that, if it is the Public Service Commission, we already have the assurance that they have the money to do the job. If it is to be a new organization, you know how it is.
Mr. Bean: That may be a problem. I certainly respect Mr. Friedman's presentation, but it will not be just one individual who does the investigation. If there is one individual who is responsible, I would compare that to the Public Service Staff Relations Board. That is, there is a chairperson, but he does not handle all the cases. Other people handle them too.
Senator Kinsella: Would you tell us as much as you can about the HRDC case?
Mr. Bean: I will be careful, because it is still ongoing. The individual reported many of the things that are being dealt with today. As a result of that, the individual has been declared "effective", which means that at any day they can come along and declare his job surplus. The declaration of effective took place in April, 1997. Since then, this individual has had to live with the knowledge that his job might disappear at any given time. It never went any further, but they have not helped him, either.
Senator Kinsella: This employee had reported that there were problems with the grants and contributions. Can you tell us to whom?
Mr. Bean: To senior management within HRDC.
Senator Kinsella: This employee went up the chain of command, said there were problems, and was subsequently declared effective in terms of his or her own job security?
Mr. Bean: Yes. That has been hanging over that individual's head since 1997, and at any time this person could be declared surplus. That is the difficulty with having to go internally. When the Prime Minister led the opposition, he made it very clear that it was the intention of the Liberal government to bring in whistle-blowing legislation during its first term in office.
Subsequently, I met with Mr. Eggleton, who was then President of the Treasury Board, and his response was they did not see any need for whistle-blowing legislation, despite the Prime Minister's comments. He indicated that all they had to do was follow the internal procedures within the departments. I tried to point out to him that that had not worked in the past. I am really grateful to see the legislation. I have not appeared very often before the committee to support legislation, but this time I support it, albeit with some changes.
Senator Bolduc: We can easily understand why they have that type of legislation in the American system, because the legislative side is kind of a check and balance for the executive. Here, of course, the situation is such that we must have one. You say that we should not go to the hierarchy, but, if the commissioner does his job as it is intended here, it will not be the employee that is doing it, it will be the commissioner. He does not give the individual's name, so, in my opinion, it is a fairly sophisticated approach.
Mr. Bean: If I have a choice between taking this legislation without amendments or not having it at all, I would take it without amendments. It is a lot better than what we have now, but it could be better. That is why I am here to make these submissions. Once we have had a better opportunity to look at it, I would be prepared to come back and talk about things that can be done. I am also prepared to meet with Senator Kinsella or anyone else to try to make it better legislation.
Senator Finestone: I was going to ask you to do that. Please do. If you can submit some amendments, and we would agree with them, that would be very helpful.
There must be review legislation in 3 years, not every year. You cannot even get the thing going in a year. That would not be very helpful.
Mr. Bean: I would negotiate to three, that is okay.
Senator Finestone: I liked what you said, because I believe that the whistleblowing bill is in defence of democracy. I looked at it from that perspective, and I am pleased it is before us.
Do you think that, with this kind of bill, our fondest dream that resolution could take place more swiftly and justice could be perceived to be done in a fairer way could be realized?
Mr. Bean: I believe, with this type of bill, it could. That is the concern with the process we end up going through now, either with the Public Service Staff Relations Board through grievances, with the Human Rights Commission, or with the courts. The process is very slow, and this bill would certainly address a major part of that.
My concern would be that whoever is responsible for this has enough investigative staff carry out the investigations in a timely manner. I do not think that the Public Interest Commissioner will do all those investigations. He or she could not.
I am not saying there will not be some abuse of the legislation, because there may be. I am reasonably confident, however, that the majority of public service workers will not use the legislation as a way to try to retaliate against a manager. If they do, they will be in trouble, but most of them will not do that. They will only use it if they firmly believe that something is wrong.
Senator Bolduc: It is not frivolous.
Senator Finestone: You would have expected me to say this, but we did make a promise in the Red Book with respect to a whistleblowing bill. As you know, I supported it whole-heartedly. The government has brought forward whistle-blowing legislation.
Have you reacted to clause 27 of Bill C-6? It is on e-commerce and personal privacy.
Mr. Bean: I was not familiar with it. When it was first raised, I asked our staff to try to find out what was in it, because I did not know about it. I really cannot answer that at this stage except to say that I was not aware of the legislation and we did not make any submission on it.
Senator Finestone: It will be important for you to be aware of it, because this is the direction commerce and industry are going. It is a phase of extremely rapid change in terms of electronic commerce. Many issues need to be examined, and this is one of them. The environment bill last year had a whistle-blower, so therefore we did meet our commitment. I just want to point that out.
Mr. Bean: This is probably not the time to debate it, but I can show you the document.
The Chairman: This is incremental.
Mr. Bean: I am pleased you started to work towards it.
The Chairman: This is a very collegial effort on both sides of the table. We look forward to receiving your brief. After that, we will want to have you back here to discuss it. In the meantime, we may have heard from the government, and you will have the opportunity to comment on other witnesses who have been here.
Senator Finestone: I am interested in some of the cases you will bring forward. You did say that the corporate culture at the Public Service Commission bothered you, and that you needed something that would operate at arm's length, but that you would settle for the Public Service Commission. Then you went on to say that confidentiality needs improvement and you referred particularly to 9.(1)(b). If there is something in there that needs to be improved, we would be interested in hearing about it. Confidentiality and privacy are certainly issues about which we are extremely concerned.
Mr. Bean: We will certainly follow up on that. When we read it, we were concerned that it was not as tight as we thought it should be.
The Chairman: Thank you, Mr. Bean. Colleagues, we will meet again on Tuesday at 9:30 to pursue the study of government policy with regard to natural disasters. A week from tonight we will meet again on Bill S-13.
The committee adjourned.