Proceedings of the Standing Senate Committee on National Finance
Issue 1 - Evidence, February 27, 2001
OTTAWA, Tuesday, February 27, 2001
The Standing Senate Committee on National Finance, to which was referred Bill S-6, 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 whistleblowers, met this day at 9:32 a.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
The Chairman: Honourable senators, our order of reference is Bill S-6, known as the Public Service Whistleblowing Act. The bill was referred to the committee by the Senate on January 31. You will recall that, in the last session, the bill was numbered Bill S-13 and the committee held three hearings on it in April and May 2000. Honourable senators should have before them a copy of a précis, a legislative summary, prepared by the parliamentary library, which summarizes the evidence that the committee heard on Bill S-13 at that time.
Before I ask honourable senators whether they wish to proceed to clause by clause, we will hear from the sponsor of the bill, Senator Kinsella, who told us at our last meeting that several technical amendments will be proposed by one of his colleagues. These amendments were circulated to you during the past week.
Senator Kinsella: My colleague, Senator Finestone, will be seconder of the bill.
Honourable senators, as indicated at the last meeting of this committee, I did forward to you a copy of the bill, a copy of the technical amendments, as well as a brief review of the bill, as a reminder of where we had left off before prorogation of the last Parliament.
The good news is that we in Canada are fortunate in having a first-rate public service of which Canadians can be proud. We contribute to public administration in many countries around the world by our public servants being asked to assist other public services in best practices, et cetera.
Bill S-6 is an attempt to provide a necessary piece that is missing in a modern, highly ethical public service. Some countries around the world are a bit ahead of us in this respect, others I believe are coming on line with this. The model that we have presented in this bill is fair to both public service management and to public service employees. It is also equally fair to the people of Canada. That is why this whole notion of public interest is at the heart of this bill.
Honourable senators, clause 2 sets out the purpose of the bill, and therein the education function is described. We underscore the point that education is one of the three pillars of Bill S-6.
The second pillar is a complaint process that is respectful -- and this is important to underscore -- of the responsibility of departments and agencies to manage their own affairs in an ethical and efficient manner. The complaint process is such that the public interest commissioner will go to the department and tell them that they have a problem and ask them how they propose to resolve that problem. Therefore, it leaves in the hands of the deputy minister and the senior managers of a department, the responsibility to run their respective departments in an ethical and efficacious manner.
It is also necessary to protect the public employee, who ought not be forced to place his or her career on the line by speaking out on something that is unethical or, indeed, illegal. I believe this bill is innovative in that it respects management's right to manage, as well as recognizing the responsibility of the conscientious and moral public servant to have a mechanism or framework within which to identify problems.
We have looked at a variety of places where the Public Service Commission might be located, and we think that the Public Service Commission is ideally situated because it is responsible for the implementation of the merit principle, which has been fairly effective and successful in our public service, otherwise we would not have one of the best public services in the world.
As well, the Public Service Commission is engaged in the educational, ethical and values issues that speak to a modern public service. Clauses 2 to 5 deal with the appointment of the commissioner; and clause 8 articulates, in particular, the education function. Clauses 9 to 17 deal with the complaint process; and clauses 18 to 22 are the anti-retaliation provisions. I think honourable senators are familiar with the model of the bill.
Based on the evidence that we have heard from witnesses, I came to the conclusion that we would be well-advised to make two small technical amendments relating to the matter wherein a complainant, or the whistle-blower, wishes to allow his or her complaint to be made public, it would not be an offence for them to do so. In the bill as presently drafted, the complainant would be forbidden from doing that.
We are proposing amendments to clauses 9 and 20. The purpose of the main amendment to clause 9 is to allow a whistle-blower, who asked for confidentiality at the time of making the allegation, to later withdraw the request for confidentiality. The withdrawal would have to be in writing.
The purpose of the corollary amendment to clause 20 is to make it clear that it would not be an offence to disclose the identity of a whistle-blower who has withdrawn his or her request for confidentiality.
That, Mr. Chairman, is a brief overview of the bill. I would be happy to participate in discussion on the bill if that is the desire of honourable senators.
The Chairman: Did you have anything to add, Senator Finestone?
Senator Finestone: It is unexpected privilege to share this particular seat with the honourable senator and, ill-prepared as I am, I am sure I will not be at a loss for words.
The committee heard from the Treasury Board team charged with drawing up a values and ethics statement based on the Tate report and other reports that had been brought to the government's attention regarding modernization of comptrollership in the Government of Canada in 1996. That followed the Tate report, and it included the concerns expressed by the Auditor General.
After hearing from the Treasury Board officials, I was concerned that they were taking what seemed to be an inordinately long time to express ethics and values. Did Senator Kinsella's presentation add anything in terms of the cohesion, the sense of well-being and worth of the public service, particularly in light of the new Personal Information Protection and Electronic Documents Act, a large section of which deals with whistle-blowing responsibility?
The definitions in that act are very similar to the language used in this instance. I do not know if that was deliberate, but it certainly excludes the potential for conflict between the two documents.
I thought it important that the public sector team who were here should understand the intent that they be included in any whistle-blowing legislation. Since the government had seen fit to have a whistle-blowing section for the private sector, why should there not be a similar provision which would apply to the public sector which represents about 10 per cent of the workforce? Should there not be a fairness principle and an equity principle which applies to both sectors? I was comforted when I thought of it in that perspective.
I came across that whistle-blowing legislation as I was preparing for today's meeting. We may, indeed, learn something from the implementation of that legislation which we can apply to the public-sector bill.
I do have a concern, honourable senators, that a sunset clause should be included in this proposed legislation.
Australians in Queensland have been most concerned about the testimony they have heard in regards to whistle-blowing. An enormous number of complaints have been made, some of them quite frivolous in the end. It is quite damaging to the person against whom the complaint has been raised, who may feel there is a whole bunch of people going around and checking up on him or her. If it turns out to be frivolous, some damage may already be done to that person's psyche, his family, and his surroundings.
I would suggest some consideration of a time-sensitive clause so that the act can be examined to see if it is really working and whether it should be integrated into the public sector under the responsibilities of both union and management under the Treasury Board. That would be my only observation.
Senator LeBreton: When I was reading the bill, I had a question about the public interest commissioner. What legal assistance is available to a whistle-blower and the person upon whom the whistle has been blown? Is it just up to the public interest commissioner to decide whether a complaint is valid, or do people have access to legal advice? In particular, do they have access to lawyers in the Department of Justice?
Senator Kinsella: That is an excellent question. In the present situation, the financial costs that would be associated with a public servant blowing a whistle on an illegal or an immoral activity are totally on the shoulders of that public employee. That person would have to hire a lawyer. They must be careful to avoid charges of slander and possible counter-suits.
Indeed, that occurred recently to a whistle-blower in the Department of External Affairs. The government counter-sued. The employee lost the suit. The Ministry of Foreign Affairs was deemed to be right. The award against the public servant was over $300,000 which obviously would bankrupt that person. On appeal, the award was reduced to $75,000.
Senator Finestone: The union is taking up that cause.
Senator Kinsella: As Senator Finestone says, currently, one can also go to one's public sector union. One can use the Public Service Staff Relations Act grievance mechanisms. However, the whole principle of our bill is that it is in the public interest to have public servants with knowledge bring forward cases of wrongdoing. They will not have to pay a lawyer to represent them to do that. As well, they will not lose their job or be red-circled. The public interest commissioner would take carriage of the matter, just as the Human Rights Commission takes carriage of complaints of racial discrimination in employment, for example. Obviously, the victim of such employment discrimination is without a job and has no resources to hire a lawyer to use the other processes. The public interest commissioner would take that burden of needing to hire a lawyer from the shoulders of the employee. That does not interfere with someone who wants to see recourse to the courts or the Public Service Staff Relations Act grievance mechanisms. Those avenues are still open to the employee.
Senator LeBreton: I am not entirely familiar with it although I did read about the case at the Department of Foreign Affairs. In that instance the parties were the whistle-blower and the minister. Do Department of Justice lawyers work on behalf of the government on a case like that? Is there not a conflict if you have lawyers from the Department of Justice representing both parties, or does the employee hire an outside lawyer? What process was followed?
Senator Kinsella: That is indeed a good question, Senator LeBreton. The current model is an adversarial model, but this bill does not propose an adversarial approach. This approach is that we will make a vehicle available that will encourage the department or the agency itself to solve its problem and to do so not at the expense of the public servant. This process avoids an adversarial approach.
We know from our experience that ministers are ultimately responsible, but very often the minister is the last one in the chain to learn about some terrible thing that has gone on in his or her department. In many ways, it is unfair to the minister. They do not know about it because the information does not come up the line.
Under this bill, the minister will be contacted by the public interest commissioner who will help the minister to discharge his or her duty. This is the uniqueness of this bill.
As a former deputy minister in Ottawa, I can understand the hesitancy of senior managers and people from Treasury Board, as the management organization, to deal with whistle-blowing. Obviously, they draw from the Department of Justice lawyers. That is their legal requirement. Although they may have some hesitation in dealing with anything to do with whistle-blowing, if they read our bill very carefully, they will see that, unlike other attempts to draft similar legislation, we are on their side. We will give them an opportunity to manage their way out of this problem. Parliament will be informed that there was a complaint against a particular department and that it was resolved. That is what we want to hear. We want to hear that nobody's career was adversely affected.
Senator Banks: I have a list of questions and I will ask them until you tell me when to stop. All my questions arise from the précis we received, and for which I am grateful.
The question was raised by some witnesses we heard on Bill S-13 about the definitions which exist in clause 3 and, in particular, the definition of "employee" on the one hand, and "public service" on the other. They referred to two different acts. The question was raised if that, in fact, means different parts of the public service are protected to different extents and in different ways. Do we want to take that into account? Should that be harmonized in this case?
Senator Kinsella: We considered what would be the best way to define "employee" and came to the conclusion that, with a new model, we would like to keep it tight. Therefore, the vast majority of employees, indeed, fall under the Public Service Employment Act, and it is that well-defined group of public servants that we are addressing here.
Senator Finestone has alluded to the fact that there are other pieces of legislation, such as the Environmental Protection Act, that contain a whistle-blowing provision. There are some others that apply to the private sector. For this purpose, we thought it would be better to use the well-defined group as provided for by the Public Service Employment Act. It was a deliberate decision.
Senator Banks: You have considered that matter, in other words?
Senator Kinsella: Yes.
Senator Banks: Would you comment on the reservation in clause 10 that was expressed by the Treasury Board people that this seems to bump up against the idea of knowing the identity of one's accuser?
This could lead, in some circumstances, to criminal charges. If I were a senior manager who had been accused of harassment, should I not be able to find out the name of my accuser, or is it more important in this case that the balance should rest on the side of anonymity? If that is so, might we run into a Charter conflict here?
Senator Kinsella: I am very glad, Senator Banks, that you raised that issue. I think the Treasury Board people were wrong. This is not a citizen-to-citizen private relationship we are talking about, it is the relationship of a public servant to the public. It is a relationship within a department of a departmental employee to his or her department. If something wrong is occurring in the department, the responsibility at the end of the day is the minister's. It is not that agent of the minister. All public servants are agents of the minister.
If the minister is ultimately responsible, we want the minister to be approached by the public interest commissioner because this is in the public interest, and the minister should be given the chance to know what is going on in his or her department.
In a sense, the individual perpetrator is irrelevant. The real issue is that all programs and actions of the corporation of the Government of Canada must be ethical. There may be some bad apples who are individual agents. This is why the deputy minister, through the minister, should have the chance to solve the problem in his or her department that may be caused by a given agent who misunderstands his or her mandate or whatever.
Senator Finestone: A sexual harassment charge is very debilitating to the family and to the person who is accused. I think that was the nature of the question.
The Chairman: My attention was drawn to that passage also.
Senator Kinsella, the point that was made by the Treasury Board representatives when they were before this committee last May is that Bill S-13 would be subject to the provisions of the Privacy Act, unless we decided to seek an exemption or an exclusion from it. Then they go on to say that, under the Privacy Act, you can protect the name of the individual making the disclosure, from the public, but they say that no one can withhold the name of the accuser from the accused, that the person has a right to know the case against him and the identity of the complainant-accuser.
You say they are wrong about that. Why do you say that? Have you run this past the legal counsel to the Senate?
Senator Kinsella: The answer to the last question is yes. The whole bill has been run by our legal counsel.
I go back to what I said to Senator Banks, which is that the proposed Public Service Whistle-blowing Act will deal with something going wrong in a government department. The department is responsible.
The Chairman: Senator, what this Whistle-blowing Act will contemplate is a situation in which an employee will blow the whistle on another employee, possibly his or her superior in the department, as having committed some wrongful act or omission, defined, as you know, as:
(a) an offence against any law
(b) likely to cause a significant waste of public money;
(c) likely to endanger public health or safety or the environment;
(d) a significant breach of an established public policy or directive in the written record of the Public Service; or
(e) one of gross mismanagement or abuse of authority.
Therefore, a public servant blows a whistle on an individual whom he or she believes to be guilty, if I could put it that way, of one of those transgressions.
The Treasury Board people who were here told us that you cannot withhold the name of the complainant from the person in respect of whom the whistle is blown. You say they are wrong about that.
Senator Kinsella: Yes.
The Chairman: I ask you whether, on that specific point, the views of our counsel have been sought. If you are wrong -- heaven forbid -- and the Treasury Board people are right, then your guarantee of confidentiality is not worth very much. The public will not know and the "blowee" will not know who the blower is.
Senator Kinsella: The public interest commissioner who has received the allegation will approach the department and outline the problem or the issue. It may be the director general of a certain program who is misinterpreting departmental policy. Names need not be mentioned. One looks at the policy. One looks at the effect of how it has been implemented. This is not intended to be a witch hunt. This is intended to get the department functioning in an ethical manner. If it is a question of a wrong between individuals, they can then seek recourse to the civil courts and sue each other.
If you would like to have legal counsel's view, one of my consultants is here. I will ask him to reflect upon this issue and to give me a note.
The Chairman: I do not know whether he is prepared to give us an opinion, but we might ask the law clerk to have a look at this. It contemplates making allegations of wrongful acts or omissions in the workplace, in confidence, to an independent commissioner. If you are right, there is no problem. If you are wrong, those who are about to take advantage of this legislation to blow the whistle ought to know that the guarantee of confidentiality is limited.
Senator Banks: On the same point, assuming confidentiality is essential, and that we represent to a potential whistle-blower that the act guarantees that his or her name will not be disclosed, I am concerned that there may be a conflict in that respect between the provisions in clause 10, and those contained in subclause 5(2). Clause 5(2) states that the commissioner may disclose, or may authorize any person acting on his or her behalf to disclose information that in the commissioner's opinion is necessary to conduct an investigation.
I can see a circumstance in my perhaps too fertile imagination in which a commissioner might determine that, in a particular instance, the identity of the accuser is so important to the question at hand that he releases it. It seems to me that this bill authorizes him or her to do that. Clause 10 states:
Subject to any lawful requirement made of the Commissioner under this Act or any law in force in Canada, the Commissioner shall keep confidential..."
However, the commissioner will be authorized by the passage of this bill to release information, which information does not preclude the name of the accuser. This may be a fine detail, but we might want to consider it. If the bill purports to provide confidentiality, this may be a chink.
Senator Kinsella: Clause 5 states that the public interest commissioner may release information subject to clause 10. It reads:
Subject to section 10, the Commissioner may make public any information that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner's duties or powers under this Act if, in the Commissioner's opinion, it is in the public interest to do so.
Clause 10 reads:
Subject to any lawful requirement made of the Commissioner under this Act or any law in force in Canada, the Commissioner shall keep confidential the identity of an employee who has filed a notice with the Commissioner...
Senator Banks: My question is a legal one, and I am not a lawyer. I do not believe that clause 5(1) which states, "Subject to section 10..." governs clause 5(2) which does not contain that preamble. I think that clause 5(2) stands on its own and is not restricted by the provisions contained in clause 10. That restriction applies only to clause 5(1). If I were a lawyer, I would argue that clause 5(2) is not subject to clause 10.
My last question relates to clause 12(5), which covers the situation where the commissioner has found that an accusation is frivolous or vexatious. In that event, the commissioner may disclose to the person who has been accused or to the minister, or whomever else, the fact that such an accusation has been made.
Would that disclosure include the identity of the accuser? In other words, would he merely disclose the fact that an accusation has been made, or would he name the person who made the accusation?
Senator Kinsella: It would depend on whether it would be in the public interest to make that disclosure. For instance, if there were an allegation of a problem involving the Department of Transport which affected safety, and that allegation, although made in good faith was in fact erroneous, and the system did work well, then it would be in the public interest to make that clear. It is important that the public interest commissioner would tell, say, the deputy minister or the director, that the way this is being interpreted is not clear. It is not necessary to identify who raised the issue.
Senator Banks: But it may. Does clause 12(5) permit the commissioner to tell the deputy minister that Fred over there or Louise has made a false accusation, however well-intentioned?
Senator Kinsella: That is not the intent. There may be a circumstance where a name may be critical. The word "may" has been inserted to allow for that kind of discretion.
The thrust of my questions has to do with confidentiality. Is it, in fact, always guaranteed? If it is not, we must be careful not to say that confidentiality is always guaranteed. Confidentiality is to be maintained, but there are those circumstances, if there is criminal wrongdoing, when it is not in the public interest to maintain confidentiality. This is why the public interest commissioner must be a person with a high office who, with an eye to the public interest, may decide that this is of such offence to the public interest that the Attorney General should be advised, and disclose the name of the person who might be charged.
However, that is not his objective. His objective is not to enforce the Criminal Code, it is to provide this vehicle for wrongdoing or unethical conduct to be resolved within the department. I should think that, as with human rights cases, 99 per cent of the cases will be resolved at the conciliatory level.
Senator Comeau: Would the honourable senator clarify the meaning of clause 12(1), which states that no further action will be taken if the notice breaches subclause 9(4), which I understand refers to solicitor-client privilege? What does that mean? Clause 12(1) refers to the commissioner taking no further action if the notice breaches subclause 9.(4). Is that correct?
Senator Kinsella: Yes.
Senator Comeau: Do I understand correctly that, if it involves a question of safety or health, this does not apply?
Senator Kinsella: Yes.
Senator Comeau: What does that mean?
Senator Kinsella: It means that if an officer of a given department is dealing with someone else, but what he is engaged in is illegal, that relationship, which may be similar to a solicitor-client relationship, does not shield him from the application of the act. One cannot hide behind it. If one filed an allegation with the commissioner, that would not be an offence against whatever professional standard exists.
Senator Comeau: That is not a question of safety and health. I am not sure if CSIS comes under the Public Service Commission, but what about the question of national security? Should it not also be included as one of these items that we may not want to make public?
Senator Kinsella: I should think that, whatever the appropriate legislation is that governs CSIS --
Senator Comeau: It would override this?
Senator Kinsella: They did file a complaint -- and this is where confidentiality is obviously very important -- so that one could not take action against a person for having breached the confidentiality under the CSIS Act.
Senator Comeau: Because of the highly sensitive nature of what an employee has reported to the Public Service Commissioner, or the commissioner in this case, should the commissioner be asked to take an oath of secrecy as well? He could be privy to extremely sensitive information of a national security nature.
Senator Kinsella: This is why we give this authority to the Public Service Commissioner, who is at the "secret" level of clearance in that capacity.
Your point raises this issue, namely, that we feel some kind of framework is needed within which unethical and illegal conduct must be brought forward and dealt with -- not in an effort to try to crucify anyone, or to try to undermine any program, or to try to undermine the minister, but to allow the minister to know what is happening in his or her own department and to have a mechanism where the issue can be resolved within the department. It will not be a sufficient shield to hide behind to say, "I work for foreign affairs and I take certain oaths. I will not tell you anything." Behind the cloak of secrecy, unethical and illegal activities can occur that may be of greater concern to the public interest.
Senator Comeau: If a hit squad is put into place, it might all come out in the wash.
Senator Kinsella: Yes.
The Chairman: Senators, are you ready to proceed to clause-by-clause consideration of this bill? Some matters have been raised here in respect of which we can ask for and we may or may not receive, depending upon whether he considers it proper or not, some comment from the Law Clerk of the Senate. None of the matters that have been raised suggests that there is a fatal flaw in the legislation.
Senator Kinsella: One of my key advisers on this bill is the legal counsel who worked on the drafting of the bill. For the clarity of the members of the committee, perhaps I could ask him to explicate the technical point that was important to honourable senators.
The Chairman: Mr. Carson, did you hear Senator Banks' question about the observations of the Treasury Board people when they were appeared before the committee?
Mr. Bruce Carson, Policy Adviser, Conservative Caucus: Yes, I had the opportunity to discuss this with Mr. Mark Audcent, the lead drafter of the bill, after Senator Banks asked his question. The response that I received from Mr. Audcent was that this bill would be right in conjunction with the Privacy Act and the Access to Information Act. Therefore, those acts would be subject to the specific provision in this bill that deal with the issue of confidentiality. The identity of the person who is making the complaint would not be released under either one of those statutes.
The Chairman: It would not be released even to the person against whom the complaint is made?
Mr. Carson: That is right.
Senator Banks: Pardon my ignorance, but where does it say that, and how are we to be certain that this bill and its provisions would override the Privacy Act? Did I understand you to say that?
The Chairman: He is reporting Mr. Audcent as having said that there is an implied exemption from the Privacy Act and/or the Access to Information Act. There is an implied exemption in here, is that correct?
Mr. Carson: That is basically what Mr. Audcent reported to me. As this statue was later in time than the other two that are being put in place, the way it is worded in clause 10 would specifically exclude the release of that information under this bill.
The Chairman: I would have thought that there was a provision in the Privacy Act or the Access to Information Act that would say something along the lines of, "This governs all legislation unless there is an explicit exemption." That was the point that our friends from the Treasury Board made when they were here. They said that it was understood that Bill S-13 would be subject to the provisions of the Privacy Act, unless it is intended to seek exemption or exclusion from the said application. Mr. Audcent believes that these provisions will operate notwithstanding the Privacy Act or the Access to Information Act, and that there is an implicit exemption in here.
Senator Finestone: May I remind you that the Privacy Act does not cover the public sector, which is why I made my opening remarks. That is why this is very important. In the interest of equity and fairness, I suggest that workers in Canada, irrespective of who their employers are -- with concerns about exceptions that are legal under the law, should definitely not be treated differently. I think that is the issue.
The Chairman: You make an interesting point because the representatives from Treasury Board say it is understood that Bill S-13, which is the former number given to this bill, would be subject to the provisions of the Privacy Act, unless it is intended to seek exemption or exclusion from the said application.
Senator Finestone: How can it be?
The Chairman: Perhaps we should ask them.
Senator Finestone: Frankly, I would like to see the Treasury Board people have a level of comfort that we are not going in a direction that counters any sense of cohesion or sense of the development of ethics and values within the workforce. Irrespective of the difficulty they are having with language to drive ethics and values, which is what I got out of their presentation here, I think that Canada has ethics and values that are worthy of promotion. I think they are fairly well understood at a gut level, let alone any other level, irrespective of how they are written.
Canadians do not want people to go against the laws of the land and they do not want people to be committing acts that are not acceptable to the Canadian ethic and value structure. I do not know that this is anything different here.
There is a whole set-up in the new Personal Information and Privacy Act that takes into account the Canadian Standards Act, which has 10 definitions, and each definition has a subclause attached to it. All these are subject to the whistle-blowing provisions that are included in that act under section 27(1). It makes it very clear that any person who has reasonable grounds to believe that a person has contravened or intends to contravene a provision of the CSA model Division 1 may notify the commissioner -- this is the Privacy Commissioner, so it is another step -- of the particulars of the matter and may request that their identity be kept confidential with respect to the notification.
The Chairman: Excuse me. When you say the Privacy Act does not apply to the public sector, you are talking about what we call Bill C-6, as passed in the last session.
Senator Finestone: You and I had some concern about that bill. I did get your note. Thank you very much. You are right. It is becomes more and more curious.
The Chairman: They are talking here about another act, not that act. It is possibly the statute that created the position of Commissioner for Privacy.
Senator Finestone: Are you referring to what I just read?
The Chairman: You just read from Bill C-6. A statute existed prior to that act coming into force, and that statute protects the privacy of citizens from the idle curiosity of governments and other public agencies. That statute, among other things, created the position of Commissioner of Privacy, which was held by Bruce Phillips and is now held by George Radwanski. The Treasury Board people are saying this bill will be subject to that act, which does relate to the public sector.
Senator Banks: Exactly.
Senator Finestone: I hear you, but I think it does not.
The Chairman: I know from private discussions with the deputy chair and with others that it was the disposition of the committee to proceed to clause-by-clause examination today. We can still do that. None of the problems or concerns that have been expressed point to a fatal legal flaw. Nevertheless, Senator Kinsella, we are at the beginning of a new session of Parliament. Do you think it would be worth it for us to take the time to canvass this matter certainly with our own Law Clerk and possibly with those people from Treasury Board on that point? The key point is whether there is an implicit exemption, as Mr. Audcent suggests.
Senator Kinsella: Mr. Chairman, I would want all honourable members of this committee to be comfortable that we have analyzed the bill as carefully as we possibly can. If further study is required by the committee, we should undertake further study.
The Chairman: Could I take the committee clause-by-clause up to a certain point and leave the title and clause 1 until another meeting? You could have one of your colleagues move the two technical amendments that you are proposing. We would complete most of the clause-by-clause examination, but we would not pass the clauses in question. That might become too complex. I was thinking out loud, and not very coherently, as it turns out.
Senator Cools: Chairman, Senator Kinsella has said that he thinks the committee should give the subject the proper consideration. I know that we are eager to move on with the bill, but one more meeting could perhaps satisfy these particular concerns. I think it is better to proceed in that way than to proceed clause-by-clause in a piecemeal way.
The Chairman: As soon as possible, let us arrange to have the Law Clerk here to discuss this bill. I do not think we need to go to Treasury Board people unless the Law Clerk gives us information that we feel would require that.
Senator Cools: I do think, Mr. Chairman, in the interests of the proper usage of time, that we should have the Treasury Board people on stand-by in case we want to ask them something. Then we would not have to go over to another day. We do not have to call them, but we should have them on stand-by.
I had one little question that was prompted by the whole notion of confidentiality. I was not a member of the Senate special committee on the Pearson matters, but I believe some senators here were. I do remember reading some of the testimony and having a great sense of alarm at some of the testimony that was given. In particular, I do not know if Senator Kinsella or Senator LeBreton remember, but there was testimony from the Deputy Minister of Justice, Mr. George Thompson at the time. I could be very wrong because I have not looked at this for many years, but it seems to me that he presented an approach to the subject-matter that essentially said that, since the Department of Justice people were lawyers, any advice they gave to anyone was within a solicitor-client relationship and that, somehow or other, the majority of government were the clients of the Department of Justice and, consequently, they were all able to be bound by the concept of solicitor-client privilege. I see one of the members who served on that committee smiling. All of that is a code for saying that they have to tell us nothing.
Within the aspect of confidentiality, does this bill, Senator Kinsella, addresses those kinds of problems?
Senator Kinsella: Just to the point that, in the processing of an allegation by the public interest commissioner, one cannot hide behind client-solicitor privilege. It would be just to that extent.
Senator Cools: Your understanding and your intention is that no wrongdoing is to be shielded.
Senator Kinsella: Exactly.
Senator Cools: That is a good point to make.
The Chairman: Will we wind this up at our next meeting at 5:45? We may be able to meet when the Senate rises.
Senator Cools: The Standing Senate Committee on Legal and Constitutional Affairs will be meeting at that time.
The Chairman: Various meeting will be going on. We will meet at 5:45 p.m. tomorrow.
I have received letters on the subject of whether our committee can meet when the Senate rises on Wednesdays. That, however, is a matter for the whips who really have the say on these matters. In the event that they agree to that, our time slot on Wednesdays will be when the Senate rises rather than at 5:45 p.m. We will leave the whips to work that out. However, tomorrow our meeting will be at 5:45, unless you hear differently. At that time we will wind this up. Mr. Audcent will be here, and we will ask representatives from Treasury Board to stand by as well.
Senators, I will adjourn the meeting now and ask you to stay for a moment, please, for an in camera session. We have some future business to discuss.
The committee continued in camera.