Proceedings of the Standing Senate Committee on
National Finance
Issue 7 - Evidence
OTTAWA, Wednesday, April 12, 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 5:50 p.m. to give consideration to the bill.
Senator Anne C. Cools (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: Honourable senators, our chairman, Senator Murray, has asked me to chair the meeting. The order of business before us is Bill S-13, Senator Kinsella's bill. Our first witnesses today are Mr. Steve Hindle and Ms Sally Diehl.
Please proceed.
Mr. Steve Hindle, President, Professional Institute of the Public Service of Canada: Honourable senators, I hope you will be pleased to hear that we are here in support of Bill S-13. The Professional Institute of the Public Service of Canada welcomes the opportunity to speak to this committee in support of whistle-blowing legislation. We believe that enabling legislation providing whistle-blowing protection for public service employees is long overdue. Bill S-13 would make it possible for employees to raise their concerns without fear of reprisal.
While this submission contains recommendations that we believe would strengthen the legislation, we are encouraged that the need for its enactment is being given serious consideration.
On page 2 of our brief, you will find a full list of recommendations, but I will be addressing each of those as we go through our presentation.
In recent years, the institute, at least where our members are concerned, has provided the voice for making public allegations of wrongdoing in the workplace. However, this voice is provided by an organization that has a mandate and a requirement to speak on behalf of its members, to lobby and negotiate for better working conditions for members, and to work on behalf of them as public service employees who are committed to serving in the public interest and for the general public good. This voice is no substitute for the hands-on, day-to-day personal experiences of practitioners whose own voices give credibility and force to any disclosures that are made.
Without protective legislation, these individuals cannot and, more importantly, will not speak out. Fear of speaking out is reinforced for employees when they witness their colleagues being penalized for whistle-blowing in efforts to protect the public interest.
On pages 5 through 7 of our submission, we have described some of the situations which concern institute members over the last few years.
Whistle-blowers are sometimes regarded as heroes, particularly when exposing serious dangers to public health or safety. At other times, they may be perceived as disloyal employees or vilified as traitors. In an employment relationship, whistle-blowers not protected by legislation or a collective agreement have no recourse if disciplined for criticizing an employer or releasing information generally regarded as non-public.
Currently, federal public service employees have no confidential disclosure mechanisms. In cases where employees have grieved disciplinary action as a result of allegations, arbitrators or adjudicators have had to consider, on a case-by-case basis, the impact of the actions on the employer and the extent to which disharmony in the workplace is created. Existing labour legislation and collective agreements covering public service employees do not provide adequate protection. Legislation is required for this purpose.
In the past several years in European and Commonwealth nations and in the United States, there has been a growing focus on ethics in government. In a changing environment of greater public scrutiny and increased demands from the public while working with fewer resources, governments are seeking new ways to carry out their business: devolution and greater managerial discretion, increased commercialization of the public sector and changed accountability procedures, to name a few.
To address the potentially negative impact these changes may have on ethics and standards of behaviour, many of these countries are undertaking a wealth of new ethics initiatives that include redefining values and codes of conduct. As part of the focus on ethics management, introduction of new or strengthening current whistle-blowing legislation has become part of the strategy. Providing protection for whistle-blowers and putting in place structures that encourage reporting are seen as beneficial in that they promote integrity and good conduct and provide a mechanism for ensuring accountability.
Currently, all that is available to concerned employees is the option to disclose information, including publicly, relying on what is available in common law for a "whistle-blower's defence." Bill S-13 would establish mechanisms and protections for them to seek the latter. While not ruling out other avenues for reporting instances of wrongdoing, including accessing the media, the institute strongly supports a legislated whistle-blower protection for those who speak out, which ensures confidentiality and action. Bill S-13 contains many of the requirements and safeguards that an effective legislation would provide.
Commonalities in the definition and application of good whistle-blowing legislation, particularly that which applies to public service employees, are the following: information that is disclosed, within an organization or publicly, must be divulged in good faith; it must be done by a current or former employee or, in some cases, by an applicant for employment; the information involves real or perceived employer misconduct, which may be described as including one of the following behaviours -- mismanagement, gross waste of public funds, abuse of authority, threats to public health or safety, and violation of laws, regulations or rules, including policies; the whistle-blower must have a reasonable belief that the allegations being made are true; and the legislation contains specific statutory provisions that prohibit and protect the individual against reprisals for complying with the legislation. Bill S-13 addresses all of these issues.
The institute does, however, recommend some changes to the proposed legislation that we believe will help to underscore the importance of working for an ethical government and provide adequate protection for those who will become, in effect, individual public watchdogs.
On the concept of application, the bill defines an employee as "a person who is an employee within the meaning of the Public Service Employment Act." That act defines an employee as "a person employed in that part of the public service to which the commission has the exclusive right and authority to appoint persons." We believe that this application is too limited because it does not extend coverage beyond those departments and others portions of the public service represented by the Treasury Board as the employer and covered under Part I, Schedule I of the Public Service Staff Relations Act, and the separate employers in Part I, Schedule II of the Public Service Staff Relations Act, who are also covered by the Public Service Employment Act. This excludes a large portion of employees working in the federal jurisdiction who provide services to and for the public.
The increasing trend of creating separate agencies, such as the Canadian Food Inspection Agency and the Canada Customs and Revenue Agency, moves numerous employees outside of the narrower definition of the "public service" as envisioned by Bill S-13. Employees who might have been covered a few years ago will be denied the protection this bill provides. For example, alternative service delivery actions that created the Canadian Food Inspection Agency, the Parks Canada Agency, the Canada Customs and Revenue Agency and NAV CANADA resulted in the transfer of more than 50,000 former public service employees outside the jurisdiction of the Public Service Employment Act.
There is a basic premise underlying whistle-blowing legislation that those who will be protected by it are acting as good citizens. They are acting in the public interest because the misconduct being exposed is harmful to third parties. The practices are under the control of the employer.
Whistle-blowers have neither the power nor the authority to effect changes and must appeal to someone or some agency that can. Whistle-blowing legislation for the public sector encourages employees to come forward and employers to remain true to the public trust. Legislation that covers individuals in the federal public service whose work contributes to the public good should have as broad an application as possible.
Recommendation number one is that the bill have the following application: any corporation established to perform any function or duty on behalf of the Government of Canada and covered under the Canada Labour Code, which would bring in NAV CANADA; the portions of the Public Service of Canada set out in Part I of Schedule I to the Public Service Staff Relations Act; the portions of the Public Service of Canada set out in Part II of Schedule I to the Public Service Staff Relations Act; and other portions of the public service, including Parliament, the Canadian Forces and the Royal Canadian Mounted Police.
In conjunction with our recommendation that the application of Bill S-13 be expanded, the institute also recommends that an independent officer mandated to receive and investigate allegations of wrongdoing be located within an office that has broader jurisdiction. The portion of the public service for which the Public Service Commission has certain statutory authority is declining as more and more public service functions are devolved to separate employer agencies and Crown corporations.
Our second recommendation is that an independent Public Interest Auditor be appointed to the Office of the Auditor General of Canada for the express purpose of investigating such allegations. We do not believe that a separate organization needs to be created. The Office of the Auditor General is mandated to conduct independent audits and examinations that provide objective information, advice, and assurance to Parliament and to promote accountability in government operations. Appointing an independent Public Interest Auditor with statutory powers to investigate cases of whistle-blowing within the Office of the Auditor General, where mechanisms for investigation and reporting are already in place, would seem appropriate.
There are two fundamental objectives of a proposed whistle-blower legislation which must be met. The first is protecting the whistle-blower from retaliation, and ensuring that the violation is appropriately corrected would be the second. Bill S-13, with some modifications, responds to the former objective. In identifying a reporting mechanism through a special independent officer, Bill S-13 provides for a report and, where there is evidence of criminal acts, notification to the Attorney General of Canada.
Our third recommendation: the Public Interest Auditor should be given expanded powers to direct the employer to respond to a serious allegation of wrongdoing, including the requirement to respond to and, if necessary, correct the problem and prepare a public report.
Concerns about allowing the department or agency to investigate itself should be mitigated by the requirement for a public report which will engender motivation to fix the problem.
In general, we recommend that those sections dealing with the authority and responsibilities of a commissioner need only be changed to substitute the word "auditor." In two specific areas, we recommend further alteration to the wording. Subclause 17(1), which requires a record of activities and the PSC's annual report, should provide that this reporting should be part of the Auditor General's annually reporting to Parliament. Subclause 16(1), which provides for an emergency report by the Treasury Board to Parliament where it is deemed to be in the public interest to do so, needs expansion to cover all employers to whom the act would apply.
The professional institute believes that there are specific conditions to be met for the legislation to provide adequate protection for individuals to report wrongdoing. In many instances, Bill S-13 is responsive to these concerns. However, there are additional considerations we would urge this committee to consider.
Clause 19(2) defines any disciplinary action taken against the person disclosing information as:
...any action that adversely affects the employee or any term or condition of the employee's employment, and includes
(a) harassment;
(b) financial penalty;
(c) affecting seniority;
(d) suspension or dismissal;
(e) denial of meaningful work or demotion;
(f) denial of a benefit of employment;
(g) or an action that is otherwise disadvantageous to the employee.
We would recommend that additional potential actions be spelled out: intimidation, including physical intimidation; civil actions; punitive transfers; denial of work necessary for career advancement; downgrading of duties and overwork; or the threat of any of the actions designated.
On the issue of proving causation between disclosure and reprisal, the act should provide that adverse employment or other action taken within a specified time of the whistle-blowing would be presumed to be retaliation. Clause 19(3) has addressed this by providing that any disciplinary action taken within two years after notice is given by the employee will be deemed to be disciplinary in the absence of a preponderance of evidence to the contrary. Bill S-13 also provides in clause 22(3) that the employee is entitled in all recourse proceedings to the benefit of presumption in clause 19(3). The institute applauds the framer of this legislation for recognizing the difficulty an employee might have in proving that an employer, with all the power and authority at its disposal, has acted punitively in exercising its managerial rights. The question must be raised, however, as to what would constitute a "preponderance of evidence to the contrary."
Redress for findings of victimization of the whistle-blower -- that is, reprisals or retaliation having indeed occurred -- should be spelled out and include damages, attorney's fees and, in the case of current employees, reinstatement with back pay or any other reversal of the adverse action taken.
Bill S-13 provides in clause 21 that a person who contravenes subclause 19(1) of the act will be subject to a specified fine; however, clause 22, "Employee Recourse," does not, we believe, adequately address the whistle-blower's entitlements.
Clause 22 provides that the employee will have access to every recourse mechanism available under law, including the grievance procedure. This does not define remedies available, nor are we confident that existing labour legislation would provide employees access to the grievance procedure and, more important, third-party review. We believe that in instances of whistle-blowing, employees should have access to any remedial awards available to adjudicators and arbitrators under the enabling labour legislation.
The institute recommends changes, either to existing appropriate labour legislation to include whistle-blowing as a ground for grievance with the benefit of presumption and access to the remedial awards available to adjudicators or arbitrators, or to this bill that would specify remedy.
Related to this issue is the concern we have for those institute members who are currently under siege for whistle-blowing activities. Subclause 22(4) specifies that where grievance proceedings are pending when the act comes into force, they "shall be dealt with and disposed of as if this Act had not been enacted." It is our considered opinion that institute members who have been encouraged by the evolving climate in government that fosters an ethics regime which supports the establishment of suitable recourse mechanisms, councillors or ombudsman for public servants who may feel that they or others are in potential conflicts of interest or ethical difficulties and who have acted within that climate should be able to avail themselves of the protection Bill S-13 would provide.
Our eighth recommendation, therefore, is that subclause 22(4) be altered to remove the word "not."
Employers must be required to post, in easily accessible sites, employees' rights and protections under the legislation for reporting wrongdoing, as well as details about the procedures in place for making complaints. Bill S-13 is defined in part as "An Act to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the workplace..." The purpose is to educate and promote on the observance of ethical practices. The institute agrees with this and with clause 8, which requires the promotion of ethical practices by disseminating knowledge of the act and its purposes.
The institute recommends a further requirement to post, in easily accessible sites, information about the act and about employees' rights. This would effectively communicate obligations placed upon employers and would strengthen this legislation.
A requirement is needed for periodic feedback or reports to the individual making the complaint from the proper individual or agency to which the complaint has been made. In this regard, the institute recommends that there be periodic feedback or reports to the individual making the complaint from the proper individual or agency to which the complaint has been made, which would include: current status of investigation; findings; actions taken or proposed; and if no action was taken, then the reasons for that decision.
A major concern that has quite legitimately preoccupied employers, and which has also influenced opposition to whistle-blower protection legislation, is that disgruntled or malicious employees will use the statutory components of such a law to act with impunity. In the first place, employers now are not immune to such action. Certainly, any subsequent disciplinary action taken by an employer has tended to be upheld by labour boards and the courts when there has not been a clear "higher purpose" served by allegations. That does not necessarily prevent insupportable charges from being made.
What Bill S-13 provides, within the confines of the act, is that frivolous, vexatious and "bad faith" complaints will not be given credence. The opportunity for a reasoned, third-party evaluation of allegations and a refusal to act where there is no foundation should provide employers with the surety that those disclosures dealt with under the act will not be false.
In this context, the institute would recommend that it is not necessary for the auditor to reveal to the employer, or anyone else, the identity of anyone making an allegation, including someone whose complaint has been rejected because motivations of bad faith are substantiated. As long as the whistle-blower follows the prescribed route of reporting to the Public Interest Auditor, no other parties would be aware of the nature of the discussions until the auditor has made a decision to require action by the employer or to report to Parliament.
The institute recommends that subclause 12(5), which allows the auditor to advise a person against whom an allegation was made and the minister responsible for the employee who gave notice, where it has been determined that there is a breach of subclause 9(4) or the notice was given in bad faith, be removed.
The institute also recommends that subclause 20(2), which accepts the confidentiality of those who contravene subclause 9(4), be deleted.
In closing, notwithstanding all of the foregoing concerns and recommended changes, the professional institute whole-heartedly welcomes legislation that protects whistle-blowers and urges the passage of a bill that will accomplish this goal.
Senator Kinsella: This is very helpful. We are trying to get this right. We certainly welcome your positive suggestions to help us along that way. To help to contextualize your presentation, roughly what is the size of your membership within the Public Service of Canada?
Mr. Hindle: The number that we think should be protected is close to 30,000. The number that would be protected is about 20,000.
Senator Kinsella: Of those in the public service today, how many are in PIPS?
Mr. Hindle: We represent 20,000 individuals.
Senator Kinsella: In Customs and other areas, are there other members?
Mr. Hindle: In other parts of the federal public sector, there are about 10,000.
Senator Kinsella: Based on your experience, with 20,000 individuals who would be covered under the present definitions or the 30,000 if coverage is extended, would you have any sense as to the numbers of potential whistle-blowers? How big is the problem? I am sure you have hard data on those who have come to you. I do not need exact statistics. I just want senators to have an idea that we are talking about a real problem.
Mr. Hindle: Of the 20,000 -- and we will stick to what the legislation in its current form would cover -- there is a potential for a lot of complaints. However, the instances of people coming to the institute is actually very small. We have fewer than 50 complaints a year. The vast majority of those do not go beyond having a discussion with the department and trying to resolve the situation. If we have as many as 10 people a year who would go public, that would be a very heavy year for us indeed. The tendency would be fewer than five. There are instances where one problem prompts more than one person to be a whistle-blower.
Senator Kinsella: Under the present circumstances, you actually have hands-on experience of dealing with the members. You play a conciliator's role, a problem solver's role, and most of the cases are resolved.
Mr. Hindle: So far we have been able to do that, but there are those instances. While the numbers may be few, the damage to the individuals and the damage to the reputation of the government is considerable.
Senator Kinsella: It is unfair and not in the public interest, in my judgment, that the public servant would carry on his or her shoulders that awesome burden and all of the things attached to that burden in terms of career problems. That situation does not serve the public service or the Canadian people, and the individual does not service the unit within which that individual is working.
I thought you made a good point on the areas that are not covered, and I am sure we will be looking at that.
What about the RCMP? Is that a special case?
Mr. Hindle: It would be a special case. It is not covered by the legislation as it is currently written. It may be worthy of separate consideration, if the committee considers it is premature to move to the RCMP being included. We do not see a problem with it being included. My understanding is that the Auditor General can already audit goings on within the RCMP, and there was evidence of that this week with the report recently tabled in Parliament.
Senator Kinsella: And the Canadian Armed Forces?
Mr. Hindle: The same goes for that organization. While they have set up an office of an ombudsman within National Defence, I am not sure that that is considered as fully adequate for meeting the needs of the Canadian Forces.
The Deputy Chairman: You and the witness are both raising very important points. Bill S-13, as written, essentially is speaking to employees within the meaning of the Public Service Employment Act. Perhaps Mr. Hindle knows the answer to the following question and can offer us some clarity. Are the RCMP and the military employees as defined within this bill? That would be the difficulty that must be overcome.
Mr. Hindle: It is our belief that they would not be covered by the act the way it is written.
The Deputy Chairman: I am absolutely certain they would not be covered. The committee should look at how protection could be afforded to those individuals. I put that out for consideration.
Senator Kinsella: Where would the Public Interest Commissioner be best situated? We have thought of the Public Service Commission. You have come forward with an excellent suggestion of the Auditor General. What is your case against the Public Service Commission being the locus for the Public Interest Commissioner?
Mr. Hindle: Our primary concern is this is well beyond the mandate of the Public Service Commission and well beyond the considerations that gave rise to the establishment of the commission back in 1918, I believe it was. The concern at that time was political patronage on appointment to the public service. We see the role of the commission being limited to the guardian of the merit principle within the public service.
We already have substantial concerns with the expansion of the role into areas beyond what we think it should be. We feel that they have taken on too much of the mantel of management or employer within the public service, duties and responsibilities that more rightly belong to the Treasury Board as the employer. If anything, the commission's role should be scaled back to being the guardian of the merit principle and not have other added duties infringing upon that mandate and the protection of merit.
Senator Kinsella: The institute thinks that the Public Service Commission's mandate should be more limited to the staffing process and not involved in anything beyond that.
Mr. Hindle: Yes. We would actually argue that the relationship between the employer and the employees has evolved sufficiently since 1918 that staffing is now an appropriate subject for bargaining. However, recognizing that there is a great deal of concern with that, we see the role of the commission limited to dealing with the merit principle and its application in the staffing process.
Senator Stratton: In all your recommendations, what is in your presentation that encourages the employer to support this bill? In essence, you must sell this to the employer as well as to the employees.
Mr. Hindle: The most encouraging aspect of this bill for an employer would be the opportunity and requirement to try to resolve an issue within the public service, be it through the Public Service Commission or through the Public Interest Auditor before an employee goes public in dealing with the media. The bill would provide some assurance to the employer that they would receive a fair hearing, just as an employee would have some assurance that they would be listened to and that someone would take seriously the concerns they have raised. Whether or not they end up going public is another matter. This bill provides more opportunity for problems to be fixed within the public service without a lot of media focus or public attention on what has gone wrong. It allows for a discussion of the issue without the entrenchment of positions that so often happens once an issue becomes very public.
Senator Stratton: We are very familiar with that.
Within the bill, can you point to something that outlines what you have said about the benefits to the employer where they would have that sense of security?
Mr. Hindle: The clauses dealing with frivolous complaints or vexatious complaints should provide some assurance. That has tended to be the biggest problem for employers. They have no protection from that now, other than taking action against someone who does that. This bill provides that complaints will first go through a process. I am hoping that people will have some assurance that the Public Interest Auditor will be independent of the department, which is the subject of the investigation or the review, as it were. It is less likely that the information would be public in a way that would be damaging to the department if the Public Interest Auditor is able to say, "No, this was a complaint brought to us, we dealt with it, and it was considered to have no merit." There is added protection there that they could actually have the Public Interest Auditor supporting what they have been doing.
Senator Stratton: Recommendation 11 bothers me because you want clause 12(5) removed. I thought that was one clause whereby the employer would have some confidence.
Mr. Hindle: You may be right, senator. If that is the only recommendation you would not like to act on, I can agree with that.
Senator Bolduc: I would like to come back to the discussion you had with Senator Kinsella about the role of the Public Service Commission versus the Auditor General. We are dealing here more or less with problems related to ethics or unethical conduct. I would have thought that the Public Service Commissioner, who is not in a situation of management but is arms' length from the management itself, would be a better place to look at those situations. Traditionally, at least, they have looked at that type of thing. I know that the Auditor General sometimes makes inquiry into bad management practices. However, here we are moving further than that in talking about wrongful acts or omissions. I have some doubts, personally, as to the wisdom of proposing what you call the Public Interest Auditor.
Mr. Hindle: I respect your opinion, senator, but I must disagree about the comment of the Public Service Commission being arm's length from management. More and more over the last several years, we have seen it take on a larger and larger role or a larger and larger activity workload that could easily be construed as management. It is also instructive to look at the pool from which the President of the Public Service Commission is normally drawn. That person is normally drawn from the ranks of the senior bureaucracy and operates at the deputy minister level. This is not a slam against the current president of the commission, but the current president is a former deputy minister and is very much tied to the management of the public service through those connections, whereas the appointment of the Auditor General tends to be much more independent and is generally not drawn from the ranks of the senior public service.
Senator Bolduc: You recognize that the process proposed in this bill is to keep a debate internal before it becomes public.
Mr. Hindle: Certainly.
Senator Bolduc: We want to solve the problem. The objective is not to go public with that the problem. You go public if there is no solution, but we would expect normally that 95 per cent of the situations would be solved within the administration.
Mr. Hindle: Yes. If I were to be given a choice as between the legislation the way it is written or no protection, I would take the legislation the way it is written. We have some recommendations we hope will be helpful and some recommendations that will generate discussion amongst the members of this committee, but given the alternative of no legislation, I can live with the commission being given the responsibility. I would be willing to work toward making that actually a viable route. Perhaps experience would show that there is a better way to do it.
Senator Bolduc: This is what I would call a "pre" quasi-judicial process. That is what is involved here. The commission is a bit more experience in that type of thing than does the Auditor General. Even though I think the Auditor General does a good job, it is not that type of job, in my opinion.
Mr. Hindle: Our own thinking on this issue has evolved over time as well. Back in 1994, we delivered a brief to Parliament called "Lifting the Silence." In that brief we recommended an ombudsman in the public service.
The encouraging thing about this legislation and the whole discussion is that we have gone beyond the discussion about the need for the legislation and are now talking about how to actually implement it and about what is the best mechanism. That is a very positive sign.
The Deputy Chairman: Mr. Hindle, could you provide the committee with some documentation in respect of page 5 of your submission? On that page, you cite definite examples of individuals who have suffered pain, injury or consequences from the very subject matter of which we speak. It would be nice if we could obtain some hard information, such as the names of the individuals, the departments involved, and the treatments meted out to these individuals. That information may strengthen our study. I understand that you may not have that information with you today, but could you undertake to provide it to us?
Mr. Hindle: Certainly. I can tell you who the two individuals are right now.
The Deputy Chairman: Perhaps you could place on the record the page number in your brief to which you are referring so it is very clear for all members of the committee.
Mr. Hindle: The reference on page 5 of our brief to the two institute members who lost their job, the first one was a medical doctor, Pierre Blais at Health Canada. He went public on the issue of the breast implant and its safety. He ultimately was reinstated to employment.
The second gentleman was a commerce officer with the Department of Indian and Northern Affairs, Robert Laboucane. He went public with the department's treatment of the Stoney Indians in Alberta and went through a lengthy battle with his employer, only to be vindicated in the end.
In both cases, these gentlemen went through very trying personal times and had a great deal of difficulty adjusting to the effect on their professional life. If you would like more information, Madam Chair, we can have that sent over to you.
The Deputy Chairman: That information would be extremely useful to the committee. On page 6, there is another reference.
Ms Sally Diehl, Research Officer, Professional Institute of the Public Service of Canada: The institute appeared before the Fisheries and Oceans Committee of the House of Commons and presented a brief discussing some of our concerns about the way scientific advice was being handled and, we felt, being gagged. I could make a copy of that available to you. You will notice that any quotes in there are all anonymous because our members were not willing to come forward. There was one person who had spoken out in previous years on other issues. I think I can provide you with a name, but I do not know if he would like his name to be public.
The Deputy Chairman: We understand that.
Ms Diehl: I can check. If he is willing, I will provide that to you.
The Deputy Chairman: Are there any other persons?
Ms Diehl: At this time, no. There was no one even willing to speak out at all, except for this one individual. At the time, things may have changed because he was in trouble with the department. In fact, his name had been used in an e-mail circulated to a lot of people, and they were told not to appear before the committee without informing the department they were doing it. His name was listed on this e-mail in such a way that he was clearly singled out. Everyone knew that he had been in trouble and that the department was trying to be rid of him. It had a chilling effect on everyone else. After that incident, I am not even sure whether he wanted his name brought forward.
The Deputy Chairman: Not today, but perhaps sometime in the future, as our study on this bill moves forward, we could hear from some of these individuals. We could provide the option of having the hearing in camera. It would be useful for the committee's study to look at this matter with a bit of closeness.
Senator Kinsella: That is an excellent suggestion.
Perhaps we can return to your comments on the Public Service Commission in general and the shift you seem to be suggesting has occurred with the role and the mandate of the commission over the years. You state that the PSE seems to be taking over management functions, which I take it you believe should be exercised by the Treasury Board. Could you give us a little detail? Could you provide us with a few examples?
Mr. Hindle: I can start with two off the top of my head. One would be the area of management training. The commission has an ongoing role in regard to that, and they are also responsible for some aspects of employment equity within the public service. We are of the opinion that we would like to deal with one employer on behalf of our members. The unfortunate situation we are faced with is that some of the functions that would normally be associated with an employer have been split between the commission and the Treasury Board. This is not a surprise to anyone, as we made these comments public before, but I can provide comments in the form of speaking notes that have been made about the Public Service Commission and this particular problem, if that would help.
The Deputy Chairman: Everything would help.
Senator Bolduc: I have some familiarity with the history of the public service. Traditionally, of course, they have had both responsibilities. They ensure the merit principle in the staffing process of selection and promotion. However, they also have the other management responsibilities for the public service, not day-to-day management, but things such as ensuring good working conditions and training. They also acted as a court in case of a dismissal and lack of ethics.
We must not forget -- and this is important for everyone -- that it is not a good thing that the whole civil service be in the hands of the Treasury Board. I do not agree with that. I have a lot of experience in that vein. The top management, particularly, must not be in the hands of the Treasury Board at all. There must be some counterbalance between the government and the public interest. The commission is there for that.
Have they done a good job? It is up to each of us to decide. However, this is a very important concept in the public service. We are not in a private business. The government of the day is the employer, but we must look a bit further. The perspective must be larger than that. The Public Service Commission was precisely established for that. If you look at the history from 1855 in England, in the United States since 1923, mostly, and then in Canada, you will realize that that was a basic notion. It is still valid, even though we have public service relationships with the unions. I agree with that. This is the modern world and I accept that. However, for the top management and also part of the middle management, it is very important that those people feel that they have, outside of the government, a place where they can discuss their problems.
Mr. Hindle: I do not disagree with you, senator. Certainly the commission has a much longer history than the Treasury Board. If the solution to our dilemma is to put all the functions of the employer with the Public Service Commission, we could entertain that as well.
Senator Bolduc: No.
Mr. Hindle: For anyone in an employment relationship, it is quite clear that they want to be able to deal with one entity who represents the employer on behalf of the government, on behalf of Parliament. It is becoming increasingly difficult to split the activities and to deal with the overlap and the conflict that exists between the commission and the Treasury Board.
Senator Kinsella: This may be one of the collateral benefits of our study. The relationship of Treasury Board and the Public Service Commissioner, the role in the 21st century of a Public Service Commissioner, and these issues of ethics and values are, in my judgment, an ongoing extension of the staffing process which must be based upon a fundamental principal of value, namely, merit. I can see it as a continuum.
The practical problem that we had as we developed the bill and introduced it into the Senate and rather than conceptualize a freestanding commissioner, we might have not had the bill accepted because it might have been to be deemed to be a money bill. That happens to be the truth of the proposition. That is why I do think that the Public Service Commission could very well be a good suggestion.
If the government was to embrace this bill with the changes that we will make based upon the assistance we are receiving from witnesses like yourselves, then there is the idea of bringing in a model where we would have a Public Interest Commissioner as an officer of parliament. What do you think of that idea?
Mr. Hindle: You would find us very much in support of that idea.
Senator Kinsella: Even more so than the Auditor General?
Mr. Hindle: Yes.
Senator Kinsella: With respect to the Auditor General, you have difficulty with the present operational mandate.
Mr. Hindle: Yes.
Senator Kinsella: That is helpful.
The Deputy Chairman: Thank you both very much for appearing today. That was an excellent presentation. Would you please speak to some of those individuals and see if they want to appear before our committee? They will be accorded all the protection and sensitivity that will be required. As our study on Bill S-13 progresses, I am sure that we will be exposed to even better ways of bringing forth these ideas.
Our next witness, honourable senators, is Mr. Walter Robinson.
Mr. Walter Robinson, Federal Director, Canadian Taxpayers Federation: As Federal Director of the Canadian Taxpayers Federation, it is a great pleasure to appear before you this evening as you examine Bill S-13, affectionately known as the Public Service Whistle-blowing Act.
To begin, the CTF is a non-partisan and not-for-profit federally incorporated advocacy and research organization. In 10 short years, we have grown to become Canada's foremost taxpayer advocacy group, and we now boast 83,000 supporters from coast to coast to coast.
My remarks will be brief to allow for a fuller discussion of this important area of public policy during your questions, to which I look forward.
Bill S-13 to us represents a long overdue and much-needed legislative attempt to move Canada toward a more open, effective, transparent and accountable government structure. The pressing need for whistle-blowing legislation has been magnified in the last few months when one examines the scandal at HRDC, which continues to grow on a daily basis, the financing practices at EDC, or as late as yesterday when one looks at the most recent observations of the Auditor General of Canada. Adding to this, we can take a look at ongoing issues at Fisheries and Oceans Canada, Treasury Board, the former Canada employment and immigration, which is now embodied in HRDC, or Indian Affairs and Northern Development, and the body of evidence in Public Service Staff Relation Board decisions which point to a conflict between the public interest and oaths of secrecy and oaths of allegiance to the Crown. The need for whistle-blowing legislation is painfully obvious to all who examine the subject.
Unfortunately, the responses we have received from Treasury Board over the years point to a well-entrenched aversion to any sort of comprehensive approach to whistle-blower protection. This runs contrary to the practice in other post-industrial democracies, both parliamentary and republican, and some glaring evidence which exists right here at home.
To be fair, our public servants, by and large, are ethical individuals fulfilling their employment obligations to the Crown. Indeed, the 1995 report of the Auditor General concluded that there is a high degree of ethical integrity within the public service. However, in this same report, the Auditor General noted that:
...there should be a number of options available...
-- for employees --
...to voice a concern not only about suspected illegal activity but also about transgressions of ethics. In some cases, it may be best to take up an issue with a supervisor. However, it must be acceptable for an individual to go elsewhere, perhaps to an independent ombudsman or ethics advisor. It is also important that an individual wishing to discuss or report an ethical concern be able to do so without fear of reprisal. There are several mechanisms that could be considered, including...whistle-blower protection legislation.
While a variety of acts compel public servants to report instances of fraud or wrongdoing, the Auditor General also stated that:
...public servants' compliance with the intent of the government's conflict-of-interest policy may be hampered by a limited knowledge about conflict of interest, reservations about its administration, and concerns about the consequences or reporting conflicts of interest involving others.
Since this report, the Auditor General has not provided any substantive follow-up data to indicate that this situation has changed in any real manner.
If we turn to the key elements of what whistle-blowing legislation should contain, it is imperative that the following six guiding principles be embodied in any statute giving birth to legislative protection of public servants who wish to place the public interest above their oath to the Crown.
First and foremost, there should be a requirement that the whistle-blower must have a "reasonable belief" of unethical activity and that this belief be supported through physical evidence and evidence of "gross mismanagement" in the supervisory chain.
The second principle would be the ability for the whistle-blower to make his or her claim to an independent investigative body that is not subject to political influence.
Third, the legislation should afford protection for the whistle-blower from reprisals, such as loss of employment, discrimination through declined labour mobility, benefit clawbacks, harassment in the workplace, and a variety of other punitive measures, which Mr. Hindle eloquently outlined previously.
Four, there should be adequate legislative protection to ensure that investigations are carried out in a manner consistent with our key criminal justice provision, that of being "innocent until proven guilty."
Five, there should be adequate retribution and disciplinary measures for those individuals who seek to use the legislation as merely a shield to attack government policy or abuse the legislation with intent to personally harm others. That was dealt with in the PSAC presentation before you in terms of frivolous and vexatious claims.
Finally, there should be a mechanism that allows for reporting through to appropriate legislative officials on recommendations, if applicable, for changes to various statutes, ideally through a direct officer of Parliament.
Various employment statutes compel public servants to report instances of mismanagement, fraud and/or abuse of the public trust. Indeed, the Financial Administration Act stipulates a financial penalty and/or jail term -- up to $5,000 -- is applicable to those who fail to report said instances of fraud or abuse. Yet, there is no protection for those people once they make those reports public.
Bill S-13, in our view, represents a very positive first step toward the establishment of whistle-blower protection in Canada. While we may have specific concerns whether the existing Public Service Commission will suffice, or whether a truly independent Public Interest Commissioner or ombudsman or watchdog needs to be appointed, the first step is indeed legislative acknowledgement for the need for comprehensive legislation. In listening to Senator Kinsella's remarks beforehand in his questioning of Mr. Hindle, I was very happy to hear that in terms of framing the bill, the senator and his colleagues were mindful of the role and limitations on the Senate to implement any measures with respect to money bills and spending.
I also agree with Mr. Hindle that there needs to be broader employer coverage with respect to the application of this law. We encourage you to support the spirit of open government embodied in Bill S-13.
It is also important to mention that taxpayer advocacy groups, public service unions, and other groups representing governance and democratic accountability interests are all on side and have all consistently and repeatedly called for some form of whistle-blowing legislation. I am sure many of you know that it is not too often that I agree with the Public Service Alliance of Canada or the Professional Institute of the Public Service other groups such as that. However, on this issue, we have a confluence of interest where everyone believes in a more open, accountable government, which is what whistle-blowing protection could provide.
I gave a speech this morning where I had people asking how they could make Canadian government better. I was speaking to a Kiwanis Club this morning in west Ottawa. One of the things I always point to, amongst other democratic instruments of recall, citizen initiative and a variety of empowering instruments is whistle-blowing legislation within the Public Service of Canada so we can move to open government. It is about making government better. As much as I appreciate receiving the proverbial brown envelope or manila envelope sometimes on a weekly basis, which allows me to do my job through access to information and a variety of other things, there is something wrong with the system when there is not an appropriate safety valve in place for conscientious public servants to put that information out there and seek redress in terms of bad government spending. It is about making government better.
We have done a variety of research -- and I hope to share some of that with you in your questions -- with respect to Public Service Staff Relations Board decisions. As much as they may acknowledge a public servant acting in the public interest, many times they come down and say that the oath to secrecy was broken or the oath to the Crown was broken. The board, therefore, finds in favour of the employer. We think the public interest, however you define it, if you can -- and it is on a case-by-case basis, obviously -- is of more paramount importance than the oath to the Crown or an oath of secrecy.
Senator Kinsella: With respect to page 3 of your notes, Mr. Robinson, and the first of your six principles, in clause 9(3) of the bill as currently drafted, we feel that we have met your principle. That clause provides:
A notice by an employee to the Commissioner under subsection (1), given in good faith and on the basis of reasonable belief, is not a breach of any oath of office or loyalty or secrecy taken...
We have embraced that principle. We tried to reflect it at that clause. Is that the kind of thing you are driving at?
Mr. Robinson: Yes, senator. The six principles we have outlined in terms of comprehensive whistle-blowing legislation are all embodied in some way, shape or form in the draft legislation you are discussing now. It is very positive.
Senator Kinsella: I and my colleagues on this committee want our study to be the best possible study it can be and want to make changes, if necessary, to this bill so that it is the best bill we can report back to the Senate. Are there other particular areas where you think we should look? What are your top three irritants of the bill as it is presently drafted? What do you think of the office or officer to whom a public servant can take his or her complaint within the system?
Mr. Robinson: We are not sure if the Public Service Commission is where an office should be. You heard this evening that there is an organized labour aversion to the office, to the PSC. That has some historical merit to it. On the other hand, the Auditor General and the Privacy Commissioner and others, I am sure you have heard through formal or informal channels, do not want to be burdened with the importance of an office of whistle-blower protection. I liked your comments saying we were not sure if it would involve the expenditure of moneys.
Our organization would not be averse, I believe, to an expenditure of monies for an office for whistle-blower protection. Ideally, it would be situated in the Office of the Ethics Counsellor. However, the Ethics Counsellor is not an independent officer of Parliament. Mr. Howard Wilson and his staff are merely an appendage of the Prime Minister's Office for all intents and purposes. If we had a true ethics counsellor reporting to Parliament, your vehicle would be there. That would be the place for it to be.
Is it another office? Perhaps. I am not sure whether we would have a full organized labour buy-in at a leadership level or on the ground if the office is within the Public Service Commission, as you heard from testimony from Mr. Bean last week and Mr. Hindle this evening. At the same time, if you look at the transcript, he said if it is all or nothing, he will take the bill. I think an independent office is something you may wish should to explore.
The expenditure in terms of -- I hate to trivialize the amount -- a few million dollars a year within the context of the global $121 billion spending that went on in this fiscal year is reasonable for integrity and greater public and voter confidence in the system, let alone your most important resource, your human resources -- your staff who work in the public service.
Senator Kinsella: Mr. Hindle told us a few moments ago, as have others, that when most of these cases arise, if one is able to go to the professional institute or to go to the Public Service Alliance, to go to their organization, very often the employee's organization is able to intervene and the problem is solved. It is my expectation, based upon experience as a Human Rights Commissioner that over 95 per cent of complaints are actually conciliated. Only the cases at the tip of the iceberg ever proceed to human rights tribunals or to boards of inquiry. Would that be your expectation as well? If we have a mechanism as visualized with this bill, one that operates in part within the public service, at arm's length, and to which a public servant is able to take his or her concern in confidence, in secrecy, and that the officer as we are calling him now, the Public Interest Commissioner, would take carriage of those cases, in my expectation 95 per cent of the cases would be resolved. Would you share that expectation?
Mr. Robinson: Yes, I believe that 95 per cent of the cases of any sort of grievance would never reach that office. Experience bears that out. It is the issue of the other 5 per cent. The other 5 per cent drive front page headlines. The other 5 per cent serve to embarrass the government. The other 5 per cent shake Canadian confidence in the public institutions of government.
A specific example would be the current HRDC spending fiasco. Our organization may not like the fact that the Transitional Job Fund exists. Michael Bliss, a noted Canadian historian, said that it has lifted the sewer off Canadian politics. A government has every right to spend money in that manner. However, the Financial Administration Act says if I believe they are spending irresponsibly, there are rules, procedures, and a paper and audit trail to be followed. It is my opinion on a variety of evidence that those procedures were not followed. Now we see the public service unions taking ads out on the radio, on television and in newspapers defending their interest. We see leaders of these unions holding news conferences saying, "Yes, our staff were told to break the records." As much as that is a safety valve, there should be somewhere else where that can go. That does shake the faith in government institutions.
The office of whistle-blower protection or the Public Interest Commissioner in the guidelines would be set up very clearly in that it would be the office of last resort. For example, the analogous issue of which I am privy to speak to is the issue of recall legislation. Being able to recall a member of Parliament is a last resort. Citizen initiatives, referenda and a variety of other empowering, positive, democratic instruments -- should be implemented first within our system. That is how I see your proposal and the spirit embodied in this bill evolving. It would deal with the 5 per cent who are the ones making the headlines. They are the ones who are high profile in terms of health issues, dollars spent or accountability and governance issues.
As Mr. Hindle rightly pointed out, we are moving into a new era with the emergence of various special operating agencies and alternate service delivery agencies, whether it be CFIA or the Canada Customs Revenue Agency, as well as various tribunals and boards. The Immigration and Refugee Board has been the subject of many landmark PSSRB decisions with respect to whistle-blowing over the last 15 years, moving right through to the issue of public-private partnerships. Let us take DND and some of its alternate service delivery measures as an example, such as contracting out to private sector providers but ensuring that the successor rights of the union employees affected move on and that there would be some application of many of those same benefits that their colleagues within the public service still appreciate. That is extremely important because issues of conflict of interest will arise as many of these agencies evolve. They are no longer mere service providers. They have a mandate. Their enabling legislation provides a schedule for them to be self-sustaining with respect to fees and charges in terms of running and funding their operations. What we will have is a quasi-government body that may not only be a regulator but a player in the marketplace as well. There will be consistent conflict-of-interest issues.
With respect to the office as envisioned in this bill, whether it is separate or within the Public Service Commission, an ever-growing body of evidence will determine some of those questions in advance. That would be very positive as the lines between public and private become very much blurred.
Senator Bolduc: The employees of Parliament, the members of the Canadian Forces and the RCMP, among others, are not included in this bill. It would probably be better if they were included. Would you agree that as a first phase we could move on with the legislation as it is but that a review process in five years, or so, could be built into the legislation to provide for these groups? That way we will see the experience of the public service. If the process works well, then we could add other public service employees to it.
The Canadian Forces is a huge organization with 65,000 employees in various situations all over the world. There is, by definition, a hierarchy that is fairly rigid because the army is the army. The climate is different.
As far as the Royal Canadian Mounted Police is concerned, I know that they are the police, but we are not sure at all if the inside processes of the RCMP always run according to the norm. No one knows. I suspect that there are criticisms somewhere. We have heard that sometimes they shake people a bit. They also work in various municipalities and in the provinces. They play provincial, municipal and federal roles. I do not know if it is appropriate to decide right now that they should be covered in the bill. That would be my feeling. I am trying to find out where you stand.
Mr. Robinson: That is a very pressing question as to what would be the scope of this legislation. In terms of police forces and policing bodies, there is a civilian oversight in various provincial jurisdictions for the actions of the police, which sometimes governs what the RCMP does as well. For example, there was a commission of inquiry into the conduct of the RCMP at APEC. There are other safety valves that would deal with overt issues and staffing issues, such as junior officers questioning the conduct of senior officers at the APEC inquiry.
With respect to somethingthat we may consider unethical within the general context of public service functions, CSIS does certain things against some of our competitor nations in the conduct of worldwide espionage or counter-intelligence that none of us would care to know about. Again, there is an oversight body in the form of the Security Intelligence Review Committee. The Canadian Forces operate in a command and control structure. Some of these things will evolve over time depending on international events.
Canada Post, in its early days, was very much a place for service men and women who came back from World War II. At that time, the management structure of Canada Postwas very rigid and very disciplined so that it could conform to the transition from a military, war-time environment to integrating service men and women back to public life. Canada Post is a money-making Crown corporation, albeit with a protective monopoly -- which is a story for another day -- and a diverse interest in courier companies that benefit when there is a strike. They seem to do quite well, regardless of whether they deliver letters or not. Canada Post has evolved over time, which I think would be applicable here.
Those issues in terms of policing agencies may be difficult. Structures have already evolved to deal with staff complaints, abuses of power and abuses of the public trust, both within the command and control structure of the policing environment and in terms of those in the military who serve and protect. For example, it is hard to draw the line. To be very crass about it, we train soldiersto be fighting machines first and foremost, even in a peacekeeping environment. Some of that conduct would not be seen as becoming in a traditional peacetime public service environment. There are some distinctions there. I think that will evolve. If a model piece of legislation works, the best practices from that legislation, such as whistle-blower protection, can be adapted for use, applicability or amendment into the various oversight functions that now exist.
Senator Bolduc: Perhaps you would agree that there must be an experimental process so we will improve the legislation over the years according to the lessons of the past. I am thinking of some other very delicate situations, such as the research establishments. For example, let us assume you are in the Patent Office and someone has a good idea that may be worth a billion dollars in five years. Everyday, we see young people working for companies like Newbridge and Nortel. They get an idea for a niche market, and then they sell it for $200 million the next day. Those people who are working in the Patent Office work in a very delicate situation. Ethical problems must be terrible in that industry. The same thing applies to the National Research Council and all the others. The variety of situations is such that we must begin with the obvious, most general possibilities, and then we will move further to the most difficult.
Mr. Robinson: I would agree with you, senator.
I wanted to answer your first question. You talked about a periodic legislative review. I think every piece of legislation, whether it be the Canada Health Act or Bill S-13 or Bill C-2, must have a periodic review. For example, does this act still meet its stated purpose? Should there be sunset legislation, or should it be replaced with something else? This bill would be no different in terms of a periodic review.
Perhaps I can touch briefly on NSERC, the NRC to a lesser extent, and things like medical research and Canadian health research in terms of what it will evolve into. We already have in respect of those granting councils a very rigorous and well-served process of peer review that deals with ethical questions up front, as they know them. The challenge is the emergence of biotechnology and the ethical questions that we will not know until we make our discovery tomorrow.
Again, this piece of legislation would evolve. It is much like the PSSRB decisions that were handed down for years. It is an evolving body of law. We cannot account for every hypothetical human interest situation. It is not like the Income Tax Act where, as complex as it is, we can account for the rules. We would like to see it simplified, but we can account for many of those numbers and equations in terms of how different people treat different transfers of wealth or whatever the case may be. If this bill is successful, we will have guiding principles that fit into a variety of situations, and then a schedule of interpretations and bulletins, as we have with many other pieces of legislation dealing with complex public policy. Though it is a daunting task, it does not mean we do not undertake it by any stretch of the imagination.
The Deputy Chairman: Mr. Robinson, you raise an interesting point in terms of the balance or the harmony between the public interest and the oath to the Crown. I am very taken with the fact that you have embraced this balance.
Senator Kinsella explained to you the difficulties he would have producing a bill that had to be consonant with section 53 of the British North America Act, which is the requirement that draws on the public treasury should originate from ministers of the Crown in the House of Commons. However, the preferred option you seem to support is one of a more independent position, such as an officer of Parliament.
As you were speaking and even as the previous witness was speaking, I found myself wondering how on earth, within an bill such as this, one could introduce that particular public interest in the bill itself. I do not know quite how it can be done. You have raised the issue and I thank you for raising it. As you know, it is a pet interest of mine.
Senator Kinsella, perhaps the committee could hear from the minister as to how much support she would be prepared to give this bill or if she would be prepared to adopt the premises of the bill and to accommodate these concerns.
Yours is an excellent idea, Mr. Robinson. I have no doubt that the concept of such a position -- an officer of Parliament -- has a lot of appeal. It means that the final appeal in the long run will stay with Parliament. That is an extremely attractive option.
Senator Mahovlich: Do you think this bill would be abused in any way? Would we have more whistle-blowers?
Mr. Robinson: I do not think so, but that is a valid question. The issue of abuse relates to how the legislation is crafted to provide that --
Senator Mahovlich: Some innocent people might get hurt.
Mr. Robinson: Absolutely. If we do not have protection, some innocent people will continue to toil away in obscurity and have questionable consciences each and every night saying, "I would love to blow the whistle on this government, but I cannot because I have a mortgage to pay and put my kids through school." We must provide the controls up front to mitigate against vexatious and frivolous claims.
The big argument against whistle-blowing legislation is that people may use it as a shield to take potshots at government policy. There are many avenues within our multi-party, pluralistic system for individuals should they so desire to take potshots at government policy in an anonymous way. They do so through the proverbial brown envelopes to our office, which will probably continue. Of that there is no doubt. There are also financial penalties, fines and the maintenance of confidentiality.
When I spoke in my presentation of reasonable belief, it stems from American legislation and other parliamentary democracies, most notably New Zealand and Australia. It is not called whistle-blowing legislation per se, but they all went to a reasonable belief of what happened. That reasonable belief must be based on concrete evidence of wrongdoing, whether that be financial records, medical or health reports, issues of fisheries and other things at the Health Protection Branch that have been brought into the public domain in the past, or whether it be employment records in terms of e-mail transcripts where there is an issue of harassment. There must be belief and evidence. Those two things are the litmus test in a court of law.
There is also the presumption of innocence until proven guilty. I may differ to a certain degree with the issue of moving past the accusation of wrongdoing, but retributive measures do exist within the public service. There was talk of a reverse presumption of guilt. Any action taken by an employer in the two years after the allegation of wrongdoing would have to be proven to be not retribution for whistle-blowing. I have some challenges there regarding the time period and how that is worded.
Getting back to your original question, I think you can craft the legislation so you mitigate against that. The challenge for you is having this independent officer. More important is bringing the minister here.
I have correspondence from Minister Massé from 1997. I mentioned there is a departmental and institutional aversion to this type of legislation, yet there is a confluence of interest outside the extra-parliamentary system. The extra-parliamentary actors believe it is necessary.
There are reams of Hansard references. I remember Sergio Marchi in the late 1980s and the Liberal "rat pack" of the day screaming and crying for whistle-blowing legislation, but this is not limited to any one party. Embarrassment and suasion are sometimes necessary. A group like ours thrives on embarrassment and suasion to get our message across and to prod the government to move in one direction or the other. In the long run, it is not healthy for the effective functioning of a public service. It is the last resort. We think this piece of legislation would be one more safety valve for better government.
The Deputy Chairman: Mr. Robinson, I think you said you have reams of letters or reams of correspondence.
Mr. Robinson: Reams of research from Hansard.
The Deputy Chairman: Could you provide us with that material? Do you have it with you?
Mr. Robinson: No, I do not, in terms of instances of debate by members of Parliament in the last 20 years on this subject. I will provide the citations to you so you can pull them.
The Deputy Chairman: We would appreciate that.
You also referred to correspondence from the minister. If you could provide it to us, any member of the committee can table it.
Mr. Robinson: I did not want to impose and say I could table anything.
The Deputy Chairman: If you could provide it to us, we could deal with it.
Mr. Robinson: The original correspondence of 1997 and the minister's response of the day, Minister Massé.
The Deputy Chairman: Honourable senators, there is a letter to Mr. Robinson from Minister Marcel Massé dated October 9, 1997. With your agreement, perhaps we could have that form part of today's record. Is it agreed?
Hon. Senators: Agreed.
The Deputy Chairman: There is another letter dated Friday, August 22, 1997. There is a third page.
Mr. Robinson: It is about eight pages in length.
The Deputy Chairman: This is a letter from Mr. Robinson to the Honourable Marcel Massé dated Friday, August 22, 1997. Hence, there are two letters. With the leave of committee members, we will append those to the record today. We shall consider them received by the committee, and they will be printed for the perusal of committee members and the public. Is it agreed.
Hon. Senators: Agreed.
The Deputy Chairman: Mr. Robinson, is there anything else you wish to leave with us? We are readers on this committee.
Mr. Robinson: Much of the other information would be background information in terms of media reports. I will need a copy of Minister Massé's letter from the clerk.
The Deputy Chairman: The clerk of the committee will make a copy so that you can have copies for your own files.
Mr. Robinson: The only other thing is an article from The Ottawa Citizen dated July 7, 1998. It clearly shows that an enterprising journalist made an access-to-information request on all the groups that had communicated with Treasury Board regarding whistle-blowing legislation. He had briefing notes from the Prime Minister's Office pointing to the institutional aversion to any comprehensive whistle-blowing protection or legislation.
The Deputy Chairman: The article as mentioned by Mr. Robinson is from The Ottawa Citizen of Tuesday, July 7, 1998, by a writer called Jim Bronskill. The article is headlined, "Senior Officials Block Whistle-blowing Laws." We will have copies made and circulated to committee members. It is not as important to have it appended to the record.
Mr. Robinson is there anything else that you would like to raise with us?
Mr. Robinson: I received privileged correspondence from various public servants and so-called moles within the departments.
The Deputy Chairman: I hear people like you and many individuals say this a lot. It is very worrisome.
Mr. Robinson: I have one pressing piece of correspondence that I keep in my desk all the time. It came from a government e-mail, a government server. They said that "Exposing waste in management carries a high cost to the employee and his family. You put your career at risk and you find that colleagues suddenly keep their distance from you. All this for a taxpayer who you believe will never understand or appreciate your personal sacrifice. Also, depending on what type of documents you release, you may wonder whether the RCMP might find some time to show up at your door, at your office or at home. In my opinion, anyone who would risk such a fate in the interest of the taxpayer deserves a promotion, not to mention a large bonus. Suggestion awards work well, but when you are questioning the way your own management handles public funds, you have another issue altogether."
That culture of fear is consistent with people who come to us as a safety valve, people who think something is wrong. They may say, "I love my job and I work for the government, but I think this is wrong." Anything we can do to address that culture of fear, taking into account the potential for abuse which Senator Mahovlich raises, is a positive step forward for open government and restoring confidence in public institutions in this country.
The Deputy Chairman: Thank you for making that point because right across this country there is enormous concern on precisely that question -- confidence in government and public affairs. Even the term "politician" has begun to take on such very negative connotations.
It worries me that our community, our society, has reached the stage where so much information is passed by means of brown envelopes. It is a very serious matter. I am pleased that you have spoken with us about that today because I am sure that you receive endless brown envelopes.
On behalf of the committee, I would like to thank Mr. Robinson for his excellent testimony.
The committee adjourned.