Proceedings of the Standing Senate Committee on
National Finance
Issue 14 - Evidence
OTTAWA, Tuesday, September 16, 2003
The Standing Senate Committee on National Finance, to which was referred Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts, met this day at 9:01 a.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we will continue our study of Bill C-25. We will hear from the minister, Ms. Lucienne Robillard, President of the Treasury Board of Canada. We will also hear from several witnesses who will bring a particular perspective to our consideration of the bill.
[Translation]
First we will hear from officials from the Canada Customs and Revenue Agency.
[English]
From the Human Resources Branch, we have Mr. Dan Tucker, Assistant Commissioner, and Mr. Paul Burkholder, Deputy Assistant Commissioner.
[Translation]
These witnesses are appearing at the suggestion of our honourable colleague, Senator Jean-Robert Gauthier. Senator Gauthier drew our attention to the fact that the Agency has for some years been working under a system that is similar to that under consideration for the entire public service and all government departments under Bill C-25.
[English]
I invite Mr. Tucker to make a brief opening statement, after which I will turn it over to Senator Gauthier and, if time permits, to other members of the committee to make comments or ask questions.
Mr. Tucker, please proceed.
Mr. Dan G.J. Tucker, Assistant Commissioner, Human Resources Branch, Canada Customs and Revenue Agency: Honourable senators, it is a pleasure to speak to you today about the experiences of the Canada Customs and Revenue Agency, CCRA, as they relate to human resources modernization in the context of Bill C-25.
I would like to take a few minutes to describe the general context of the agency and then focus more specifically on our human resources management regime. One of the main reasons for the creation of the CCRA as a separate entity in the public service was that the change would lead to more innovative, client-centred service to Canadians. Our mission then and now is very clear: to promote compliance, whether in tax, trade, or at the border. Thus, two guiding themes characterize our organization and our measures of success: innovation and compliance.
Indeed, the vast majority of Canadians comply with their tax and customs obligations. We have responded to the challenges of 9/11, SARS and, most recently, the power outage in Ontario by maintaining the security of our borders and our services to Canadians.
On the innovation front, we are leaders in the area of e-commerce and on-line services.
CCRA was established in 1999 as a separate employer with the ability to develop its own human resources regime and policies in such areas as collective bargaining, staffing and recourse. I will describe some of the features of our human resources regime in a few minutes, but I wish to stress that our HR regime is a an essential tool in helping the agency to achieve its results.
Simply put, our success is due primarily to the efforts of our employees, some 50,000 hard-working, dedicated men and women across the country, and to being able to tailor our HR practices to meet their needs in line with our business goals. This has been critical.
CCRA was also established with another unique feature as part of its overall governance regime. We have a board of management to advise and provide direction on the management of the agency, including its human resources management.
Members of the board, nominated by each province, are eminent Canadians, primarily from the business sector. They spend considerable time on human resources management, providing us with solid advice based on their expertise and knowledge. They also provide a valuable challenge function and support our efforts to improve and innovate.
Honourable senators, CCRA is one of the largest public institutions in Canada. As I mentioned, we have over 50,000 employees in all corners of the country. Over the next decade, we will see unprecedented change both in terms of the innovations we implement and in the workforce, as the baby boomer generation begins to retire in large numbers.
Helping the CRRA to adapt to these challenges and keeping its business and employee needs aligned requires a human resources regime that is flexible and responsive. We believe that the CCRA has a solid and forward-looking human resources regime to meet the challenges of the future.
Since 1999 we have made good progress in implementing our unique regime, but it is evident that cultural change of this nature in an organization of this size does take time. It requires significant investments in engaging managers, human resources professionals, employees and their representatives in consultations, design teams and training.
Some of our more tangible achievements include: a conflict resolution system that allows employees to resolve workplace issues in an interest-based fashion; a performance management system for all employees and management with a particular focus on effective people management; a corporate culture of continuous learning, with significant investment in training and educational assistance; the creation of a cohesive management group to recognize the significant management responsibilities they share and to assist in leading change on the frontline; a collective bargaining regime, in which we can and do negotiate collective agreements that support the business and employee needs of the CRRA; a new capacity to target our external recruitment supported by technology and simplified processes; the development of a staffing and recourse regime that is less administrative and adversarial and that promotes values, accountability of managers and dialogue; a streamlined staffing program whereby the time to hire staff has been reduced; and a strategic and management-led employment equity program resulting in a strong record of representation of designated groups.
The results of the 2002 CCRA employee survey demonstrate an increased level of satisfaction with the agency as an employer and as a place to work. The figures show that 94 per cent of respondents are committed to making their organization successful — an increase of 8 per cent from the 1999 survey; 86 per cent believe that the organization is a good place to work; and 85 per cent believe they are treated with respect. While work remains to be done, these results signal that the organization is moving in the right direction.
Allow me to say a few words now about our tailored staffing program under the authority of the Canada Customs and Revenue Agency Act. The cornerstone of our staffing program is a set of eight staffing principles including competency, fairness, transparency, non-partisanship, representativeness, productiveness, adaptability and efficiency. These principles are enshrined in the agency's corporate business plan and its policy framework.
We have a sound policy framework approved by our board of management for the staffing program that governs the recruitment and promotion of staff. Staffing authority is delegated to managers at the lowest level in the organization, but not without the appropriate checks and balances. For example, managers have staffing accountability contracts and they undergo mandatory training. As well, the exercise of staffing authority is subject to ongoing monitoring and periodic evaluations by our audit program.
Our recourse system requires that our hiring managers be accountable to provide feedback to candidates on how they were treated in the staffing processes and how the principles were applied. Recourse for candidates is available at each stage in the selection process, and corrective actions can be taken at each stage, rather than waiting until the end of the process. Also, candidates have access to independent third party review for complaints on internal promotions on the grounds of whether the decision was arbitrary. We also have a Federal Court decision that supports the fairness of our recourse process.
I have talked about the importance of our human resources regime in helping CCRA to achieve its business goals to date, and in having the ability to adapt that regime as changes and business needs occur. This will be all the more important during the next decade. Our regime is flexible, but it is also balanced by appropriate checks and balances: a board of management that approves and oversees HR policies; a robust internal audit program; reviews by the Public Service Commission; effective grievance and recourse processes; and periodic surveys and other pulse checks.
Some portions of Bill C-25 will apply to the CCRA, in particular, the labour relations provisions as they apply to separate employers, and the provisions regarding the political rights of public servants. CCRA will, however, continue to have its own staffing program. We believe, based on our own experience as an agency and previously as a department subject to the public service human resources management regime, that the provisions relating to such subjects as training, staffing and recourse in Bill C-25 are in keeping with providing government departments with additional flexibility and tools for a more responsive and tailored human resources regime.
[Translation]
Senator Gauthier: The reason I have taken an interest in your Agency is that for some years now, the government has been carrying out transfers to agencies such as yours and other organizations. I am thinking here of Canada Post, for example, which is a large organization. Last week you were called structural heretics. Professor Hodgson told us that even though you are part of the public service as a whole, you are not subject to the same regulations as the vast majority of public servants are. I found that intriguing, because I live in Ottawa. I often hear comments made by public servants. The comments I have heard about the Canada Customs and Revenue Agency are positive. I am wondering how they have succeeded in maintaining social and labour peace, whereas the Public Service of Canada —
[English]
— what you call the core public servants who are having difficulty. Bill C-25 addresses some of these issues. In my humble opinion, they have followed some of the steps you have taken and that are being proposed in Bill C-25.
I have several points of concern, one of which is that you are not subject to the merit principle. Another concern is that you are not subject to the accountability that normally applies to the public service. Yet another concern is that you are not subject to the auditing by the Auditor General. Am I correct in that? Perhaps you would deal with those concerns one at a time, starting with the merit principle.
Mr. Paul Burkholder, Deputy Assistant Commissioner, Human Resources Branch, Canada Customs and Revenue Agency: As to the merit principle, our legislation has provided us with direction to establish a staffing program. We are also directed in the legislation to establish certain principles, and those principles must be compatible with those applicable to the rest of the public service.
We operate our system on the basis of ensuring that we are able to attract and recruit qualified, competent staff, and we follow our processes in that regard. Our focus is on individual merit. When candidates apply for positions we assess their qualifications against sets of competencies and skills. From within the pool of those qualified candidates we have assessed in significant detail, we can choose individuals who meet the particular business or other requirements of the job.
The choice is based on individual merit. It is not based on a formalized ranking of one candidate against another. We determine the essential qualifications and our managers are able to look at the business requirements. Matters such as employment equity will come into play when we consider the pool of qualified candidates and we want to select the right fit for the particular job.
It is key to note that in establishing those principles, we went through a significant exercise with our employees and with our managers in setting up our staffing program. We had an extensive process of consultation. The principles that Mr. Tucker outlined were developed in concert with our managers. They are very much owned by our managers and they often speak of them. As Mr. Tucker mentioned, we built significant checks and balances into the process to ensure that our managers exercise their staffing accountability in a good fashion.
Senator Gauthier: I am sorry to interrupt you but we do not have much time.
Is yours a federal institution by definition?
Mr. Tucker: It is, as a federal institution, very much part of the public service, but it is a separate employer.
Senator Gauthier: You do not come under the Treasury Board; you are independent.
Mr. Tucker: In terms of our human resources and administrative policies, our board of management approves our policies, that is correct, senator.
[Translation]
Senator Gauthier: Let me ask you a specific question: do you negotiate and then set your classification standards, or do you negotiate them after the fact?
Mr. Tucker: That is a management right and we set our own classification standards. Because we are a separate employer, employee wages are negotiated with the unions.
Senator Gauthier: Do you have a bilingualism bonus?
Mr. Tucker: Yes, the same bilingualism bonus.
Senator Gauthier: A bonus of $800 which is not negotiable and has been the same for 25 or 30 years.
Mr. Tucker: Yes, it is the same bonus. We can review it and decide whether we want to change similar policies. We have exactly the same bonus as the Public Service.
[English]
Mr. Burkholder: In the context of federal public institutions, we are subject to the same legislation — the Human Rights Act, the Employment Equity Act and we also come under the Public Service Staff Relations Act. We are very much a federal institution in that sense, and have very similar responsibilities under those statutes.
Senator Gauthier: Who audits your books?
Mr. Tucker: The Auditor General of Canada. They also express an opinion on our financial statements.
Senator Gauthier: Do you not report to Parliament regularly?
Mr. Tucker: We do. In keeping with the Canada Customs and Revenue Act, a corporate business plan is tabled, as well as an annual report.
Senator Gauthier: My last question concerns the number of grievances. Has the number of complaints decreased since you became an agency? Could you give us some facts on that?
Mr. Tucker: Perhaps my colleague can give us some statistics related to staffing. However, in terms of the overall labour relation grievances, I think we find those to be in another category, and we need to analyze them to determine the reasons for those grievances. I cannot say that labour relations grievances per se have gone down. What I can say is that, our public service employee survey indicates some significant improvements in the way employees feel about working in the Canada Customs and Revenue Agency. Perhaps my colleague has some statistics.
Mr. Burkholder: Before the agency came into being, we had approximately 700 significant appeals that came under the provisions of the Public Service Employment Act. Our recourse provisions are now structured differently. Our managers become involved at individual levels and discuss the issues with the employees. We also have an independent review committee that looks at staffing grievances. The number of cases that go to third parties is less than the number we had with the appeal process. We have many interventions.
Senator Gauthier: Do you have an independent tribunal?
Mr. Burkholder: It is an independent third party review that looks at significant issues in the staffing process.
[Translation]
Senator Gauthier: Who is responsible for language promotion in the agency?
Mr. Tucker: The same people as in the Public Service, including private firms.
[English]
Senator Gauthier: Are you saying that you can hire somebody who does not meet the language requirements of the job and you can send him or her for training for two years or so?
Mr. Tucker: Yes, a manager is required to determine whether we want to use imperative staffing; that is, establish that the language requirements are met prior to staffing, or not. Essentially, we are trying to increase that level of competence. It is always a management decision that has to be taken.
Senator Kinsella: In your testimony a few moments ago, you made reference to your employee survey. I am rather astonished that, by my calculation, some 2,500 of your employees believe that they are not treated with respect. You tell us that only 85 per cent believe that they are treated with respect and that you have 50,000 employees. Therefore, 2,500 seem to perceive difficulties and 14 per cent do not believe that your organization is a good place to work.
In the United States, after September 11, 2001, the customs responsibility was moved from the Department of the Treasury to Homeland Security. I suspect that that has created a significant cultural change for the United States customs officials. Has that impacted on Canadian customs and your mission and philosophy, because you work so closely with the United States' customs officials?
With this high level of dissatisfaction and this shift of your colleagues in the United States, the opportunities for abuse and wrongdoing may very well increase. Therefore, I would like to have your reaction as to what you would see from the management of the organization perspective in terms of managing your agency in an ethical and a value- based manner. Would you support applying modern whistle-blowing legislation to your agency?
Mr. Tucker: I will respond first to your concerns about the employees within our organization.
It is important to try to improve how employees feel in an organization. Our public service employee survey from 2002 demonstrates some significant improvement from 1999. I will give a few examples. There has been an increase of 25 per cent of employees who feel that management will resolve their concerns, and an increase of 19 per cent of those who feel that we support their career development. There has been an increase of 15 per cent who say that their work is clearly identified against clearly identified goals.
No organization is perfect. As a member of a large organization you strive to be as perfect as you can, to listen to employees and to improve the process. We have been trying to do that through consultations and other efforts since we became an agency. We have also instituted a particular focus on people management, that is, of how we manage and work with people.
I have some difficulty in commenting on the Homeland Security and how it relates to our organization. That is a question that is perhaps more related to what legislators might have to determine.
With regard to whistle-blowing, it is important that employees have a clear code of ethics and values. They should know what is expected of them. Since becoming an agency, we have established a clear code of ethics and values and communicated that to employees who are required to acknowledge that they have received and understand it.
We have also held training and information sessions. It is also important to try to reduce the number of opportunities, through modern controllership, for employees to misuse certain systems.
That is the context and where the focus must be. Obviously, we are very concerned with employees having the ability to report any wrongdoing that they perceive in the organization. That is clearly defined as an obligation in the code of ethics. They are required to report it. If they are not comfortable reporting it to their immediate manager, they can report at a higher level in the organization. We have an internal affairs organization that investigates any allegations of wrongdoing. Corrective action is then taken.
That is essentially what we have put in place. We continue to strive to ensure that we have the most proactive approach in this regard.
As to whether I would support this kind of legislation, I find it best to leave that to the legislators. Certainly, it is an area of which all public service managers must be very conscious and support, doing everything that we can to ensure that we have a work environment that allows us to detect any wrongdoing.
The Chairman: That will conclude this segment. Thank you, Mr. Tucker and Mr. Burkholder. That was very helpful. I hope we will have an opportunity at another time to explore much more fully the work of CCRA.
Colleagues, Dr. Keyserlingk is the Public Service Integrity Officer. He was appointed as Canada's first such officer on November 30, 2001 under the policy on internal disclosure of information concerning wrongdoing in the workplace. From 1995 to 2000, Dr. Keyserlingk was the first director of the multidisciplinary biomedical ethics unit of the Faculty of Medicine at McGill University. He was previously a member of the McGill Centre for Medicine, Ethics and Law and director of the environmental law department of the Law Reform Commission of Canada.
If you have been following the media yesterday and this morning, you will know that his first annual report to Parliament was tabled yesterday in Parliament. A copy was distributed to members this morning.
Honourable senators, once again, I hope and expect that we will have the opportunity at a later date to explore Dr. Keyserlingk's activities more fully. For today, however, we have 30 minutes in which to discuss one particular issue concerning Bill C-25, which is the agenda item before us.
The issue is whether whistle-blowing legislation ought to be incorporated into this bill, if there is to be legislation, or form the subject matter of a separate bill. We have had recommendations on that matter from a number of witnesses on this bill and from members of the committee.
I will call on Dr. Keyserlingk to make a brief opening statement, after which, I will give the floor to Senator Kinsella, who was the prime mover in inviting Dr. Keyserlingk.
Dr. Edward Keyserlingk, Public Service Integrity Officer, Public Service Integrity Office: Thank you very much for this opportunity to speak with you about matters of interest to all of you and to me. I wish to introduce my executive director, Mr. Pierre Martel, who is accompanying me today.
I will give a brief background and then I would be more than happy to address the issue of particular interest to you, namely, Bill C-25.
This office was established on the basis Treasury Board policy, not legislation. It was set up to do two related things: to receive and investigate allegations of wrongdoing in the public service; and to protect from reprisal those who make such reports.
It has been our experience over the past 22 months that, as a policy-based institution, we do not have the confidence of public servants that we can do this job effectively and also protect them from reprisals. Therefore, on the basis of that skepticism — which persists despite our efforts to address it and persuade them otherwise, as well as the fact that we are not receiving the kind of allegations that we think are out there from what we read and know from various sources — they have not come to this office.
Both of those factors have led me to conclude that, ideally, our office should be legislatively based. We should also have a framework which would be persuasive to those who may wish to come forward with allegations of wrongdoing, so that they have the confidence to feel both protected and that we can deal with these allegations effectively.
Therefore, I have made a number of recommendations. Some involve restructuring the office. The first recommendation is to provide a legislative basis for our office. The second, in that context, is to have available enforceable recommendations, enforceable either by the office or by a next stage in a legislative framework. The third is to remove this office from the context of the Treasury Board and the context of human resource employment, because the wrongdoing that is in mind for this office has always been far broader than that, far more serious than that, and there are other mechanisms to deal with the grievance-type complaints that have come our way. The wrongdoing in mind is breaking of laws and regulations, misuse of funds, misuse of property, gross mismanagement, threats to human life and health. Those are the four kinds of wrongdoing that were provided to this office that we are meant to investigate. We call those public interest types of wrongdoing because they obviously have a very serious public interest implication.
I am recommending that the head of the office be appointed by or approved by Parliament. The office should, in my view, report to a designated parliamentary committee. It should also be reporting via a minister. In both cases there should be a hands-off relationship with the committee and the minister in terms of how cases are investigated and disposed of.
In terms of access to the office, I have made a number of recommendations as well. Allegations of wrongdoing should be able to be received and investigated from any source, including private citizens, public advocacy groups and public service unions. The issue is that we want to identify and deal with wrongdoing in the public service, wherever the allegations originate.
Access to the office or a successor agency should, in my view, be provided to all those in the public sector, not just as present to those who are core public servants, which would mean those who work for separate employers, Crown corporations and so forth.
I recommend that the protections from reprisals should be available to anyone, wherever the original complaint has gone, whether a witness to a parliamentary committee or an agency, there ought to be a possibility that this office can investigate any subsequent complaints of reprisal for having made that initial disclosure.
Lastly, I am recommending that the government should, in a very public way, indicate that those who come forward with good faith allegations of wrongdoing should be encouraged and awarded for so doing. To help to right the balance against the obvious concerns about coming forward, there ought to be a climate created whereby this is seen as an activity very much in the public interest and very much to be rewarded rather than punished.
That, Senator Murray, is a summary of the recommendations we are making.
I would make a last point, and this, I think, comes closer to your interests. I am recommending that this legislation be stand-alone, be a statute specifically, exclusively directed to the issue of disclosure of wrongdoing or whistle-blowing and not attached to any other statute.
Senator Kinsella: Dr. Keyserlingk, let me add my congratulations to those who have congratulated you for the straightforward manner in which you have approached your responsibilities. I was not surprised that you would come to this conclusion, given the nature of the problem. You showed fortitude in, effectively, making recommendations in the public interest, even though it may put you out of business. If we could see more of that in this town, Canadians perhaps would be better served.
I have three points. On the issue of the machinery, would you comment on the importance of the attempts to settle the matters complained of within the organization and, indeed, having the managers involved in the problem solving? Would you also comment on the adjudicative or the reporting function. Would you add comments on the importance of the role of that machinery in education and in shaping the climate to which you just referred?
Mr. Keyserlingk: To start with the last item, education is extremely important. I think an office or agency of this kind has a major role to play in that regard, in part because, if we are to investigate and try to resolve allegations of wrongdoing, we have an obligation to make clear what we understand wrongdoing to be, which is not obvious in all cases. A code of ethics goes a certain distance, but we must determine how we apply that in specific situations within each department, each of which has a very different mandate. As an office or agency, we obviously cannot do that alone. That is a role for many other branches of government as well.
Did you also ask about how we conduct investigations?
Senator Kinsella: Yes, I asked about investigation and then conciliation or settlement.
Mr. Keyserlingk: Much of what we already do is, in fact, a form of conciliation or negotiation in a sense, because some matters we deal with do not involve wrongdoing, rather, they may be grievance-type issues. Very often we can settle those problems with a phone call and scare people into thinking that the office has more power than it does, because it sounds like it should. We often reach a resolution very quickly for a longstanding problem that has been allowed to simmer too long. That takes care of a certain number of problems.
At other times we have to conduct a full investigation. Our longest running investigation has been about seven months. That was longer than we wanted it to be, but it was an extremely complex investigation. We try to make a finding of whether there is wrongdoing or not, and report that to the deputy minister, along with a recommendation of what we think should happen.
We reach the point where we have nothing further to say. If the deputy does not want to do anything about it, we can only ask the clerk to speak to the deputy. We do not have a next step in the legislative framework. I am not suggesting that deputy ministers do not act on our recommendations, because we have not been at it long enough to make that claim. However, I am suggesting that public servants look at our system and cannot see anything after that point to assure them that something will happen if a recommendation is not acted upon. I think they have a point in that respect, in terms of the structure, and that creates a certain amount of skepticism.
Senator Kinsella: Dr. Keyserlingk, I want to turn your attention to the issue of anti-retaliation legislation that must be a part of the machinery. We have a great deal of experience in Canada with fair employment practices and laws, such as in the human rights acts that are complaint-based. Unless the complainant is protected from retaliation, the system does not work. That is why we find in fair employment practices statutes and in human rights statutes, that perhaps the strongest provision is the anti-retaliation provision. If you had had that kind of legislative force behind you, do you think your experience in the past year would have been richer?
Mr. Keyserlingk: Yes, I believe it might have been richer. Clearly, exposing themselves to retaliation is the major concern of people who might be inclined to come forward. If something were in place to indicate that complainants would be legally protected, then we could investigate claims of retaliation and make findings and recommendations. Then, if necessary, we could take it to a next step, which would be a kind of enforcement stage. Yes, I believe it would have been different.
Senator Kinsella: I have one comment in closing. This committee, as honourable senators will recall, in adopting Bill S-11, adopted a freestanding, whistle-blowing model.
Senator Gauthier: I received your report last evening, Dr. Keyserlingk.
[Translation]
You are pretty hard on your office, saying that it has been neither effective nor productive. And yet there have been no complaints recently, even in the most controversial cases. I am thinking in particular of the Radwanski case.
I cannot understand how a whistleblower can be working all alone in an office. There must be other people working with him.
In your proposal for a new office, we will be establishing the facts. You want to abolish that office and set up a new one with much broader powers. Is that what you are asking for?
Mr. Keyserlingk: No, not exactly.
[English]
May I respond to that part? We are not recommending an abolition of the office but rather an evolution into the next stage. In my view, it was a useful initiative to begin this way as a policy-based institution, to try it out and to know that it works or does not work, as opposed to simply speculating about it. In other words, we have certain strengths already because we have established the independence of the office, in practice.
The problem is that we cannot convince public servants that we are independent because we are within the Treasury Board employment context. We would take with us the established independence and the experience of establishing a team, which is effective, knows well how to investigate, and which recognizes the issues. I am recommending that we establish that in a new context — in a new legislative framework — and add the ability to enforce and to protect more effectively from reprisal. I am not recommending that we abolish, but rather that we evolve into something more complete by adding the next stage. The year was not wasted, but the matter does need to be given a different framework.
[Translation]
Senator Gauthier: Do you feel constrained by the fact that you come under the umbrella of the Treasury Board?
Mr. Keyserlingk: Yes.
Senator Gauthier: And you want to see that constraint removed by becoming an extra-governmental organization, as opposed to an extra-departmental office? You also want everyone working for Canadian citizens in the public sector to be included. You believe they should all have access to your office to lodge a grievance. Did I get that right?
Mr. Keyserlingk: Yes, that is correct.
Senator Gauthier: In this new organization, the office you are suggesting with broader powers, would your budget or funding come from Treasury Board?
[English]
Mr. Keyserlingk: That is a good question. We recommended that we report through a minister because, clearly, having that contact would be a useful function for budget purposes. However, I believe that it would also require a link with Parliament and the relevant parliamentary committee. I do not know how that would work in terms of balancing the two roles. I am not proposing anything specific at the moment, I am simply saying that those two elements are important for budgetary, reporting and other kinds of reasons. The financing of the budget is an important factor to be considered in terms of how we work out the particular details of the structure.
Senator Gauthier: I submit to you that he who pays the piper also calls the tune. I believe that is your objection to being under the control of Treasury Board.
Mr. Keyserlingk: Yes, but perhaps Parliament could protect us from some of that.
Senator Gauthier: You said that Treasury Board has never interfered with your operations.
Mr. Keyserlingk: They have never interfered, but I understand the budgetary considerations. I am hopeful that a formula could be devised that would put the budgetary issue in a more public domain. That is one reason why I am recommending that we have a reporting link with a parliamentary committee.
Senator Gauthier: If you could find that formula, other officers of Parliament would be interested as well because they are seeking the same solution.
Mr. Keyserlingk: It is clear that we have a great deal of work to do. If these general proposals are taken up and deemed to be useful, then much work would have to be done on the specifics of proposed legislation to incorporate them.
Senator Gauthier: Currently, any recourse ends with you in that there is no recourse open to you to appeal to the courts after a decision from your office.
Mr. Keyserlingk: That is right. We cannot go before a court, but a complainant could do that. In fact, we are already subject to reviews up to and including the federal court, which is completely appropriate, in my view. However, we are asking that the PSIO have enforcing power, or the right to take an issue before a court to request enforcement of an order.
Senator Gauthier: You are not recommending that we amend Bill C-25 but that we have a new legislative proposal.
Mr. Keyserlingk: That is correct.
Senator Gauthier: The proposed legislative document would deal with this whole question of retaliation against a complainant.
Mr. Keyserlingk: Yes. There are two reasons: first, this issue is important enough that it requires direct treatment in a very special statute; and second, by putting it into another context, such as Bill C-25, it would perhaps raise some of the same issues that we face now by being in a Treasury Board context. Whether it is the Public Service Commission or whether it is Treasury Board, the ideal is to protect it by putting it into a unique place where it is not part of the human resource/employment context.
Senator Gauthier: I agree.
[Translation]
Senator Beaudoin: I have a problem with fundamental rights. I agree that such a system should be set out in another piece of legislation.
[English]
Privacy is protected under the Charter of Rights and Freedoms. We also have the principle of audi alteram partem. It is one thing to have whistle blowing; but it is another to allege that a certain person is doing this and that. It worries me to a certain extent. Under our system of law, we are always presumed innocent, and it is up to the Crown to establish guilt beyond a reasonable doubt.
Are you following Part III or Part IV of the Charter of Rights and Freedoms dealing with the juridical rights of each person? Privacy is one of them — audi alteram partem is everywhere in our system. There is also the question of negotiation and conciliation.
I am not opposed to such a system. It may be very useful, but it should be handled in a proper manner. The structure should be clear-cut, because you could easily encroach on the provisions of the Criminal Code, for example.
I am sure you are aware of the many cases that have been heard by the Supreme Court in this precise field. As a matter of fact, in 20 years of the Charter, the Supreme Court has ruled on 400 cases. Are your system and your structure adequate to respect all the principles of our system of law?
Mr. Keyserlingk: Yes, I think they are. Currently we make great efforts to apply, essentially, the rules of natural justice, whereby we consider disclosures that come to us as allegations, first of all. They are not established wrongdoing. That sometimes surprises those who come to see us, but, in fact, that is how we consider them. We do not assume wrongdoing until we have investigated. We investigate the matter in such a way that we respect the rights of the alleged wrongdoer as much as the rights of the person who made the disclosure. That means that we involve that person or those persons at an early point in what we are doing. We give them every opportunity to state their case — give us documents stating what they might feel is their view and their case — and we do not make a finding until we do a balanced consideration of both sides.
In a legislative framework, I presume we would be even more rigorously bound in that regard, but it is not as if we are not already conscious of the issues that you have raised. When it comes to a crime or a presumed crime that we uncover, we hand that over to the police. We do not deal with those ourselves. Like every other such agency, we hand it over. It does not mean that we do not keep a link, and play a role, but it becomes a police matter.
We deal with issues all the way through that are primarily not criminal — breaking of laws and regulations that are not criminal, and with misuse of funds and so forth, although the but misuse of funds can become a criminal matter, obviously. Gross mismanagement is an issue with which we already have a fair amount of experience, and that I think will become a bigger issue as we proceed. That, again, is not a criminal matter, necessarily, although it could become one. However, it is more a question uncovering where the responsibility lies? Who was responsible for an activity? How can we propose a remedy that will fix the problem and identify, and perhaps even punish, the wrongdoer? We are very conscious of the issues you raise because we We have to be.
Senator Beaudoin: In your structures, do you have such a principle as "le droit à l'avocat'' during the inquiry?
Mr. Keyserlingk: Yes, absolutely. At any point, any person may bring in legal counsel.
Senator Beaudoin: This is mandatory. There is no doubt about that.
Mr. Keyserlingk: In fact, in deciding whether we are subject to federal court review, one of the considerations was: Do our findings and recommendations have legal implications for the two parties? The conclusion was that, yes, they do. Therefore, we become subject to federal court review, and are obliged to follow a very careful process that respects the rights of both parties. If we are found not to have done that, presumably, the court will tell us that.
Senator Beaudoin: However, the person at first has the right to be heard.
Mr. Keyserlingk: Yes, absolutely.
[Translation]
Senator Ferretti Barth: Since your appointment in November 2001, how many investigations have you carried out?
Mr. Pierre Martel, Executive Director, Public Service Integrity Office: We have examined some 87 cases that required a preliminary review, analysis or investigation. In our annual report, we mentioned that 24 of these cases related to violation of a law or a regulation; six others related to allegations of misuse of public funds or assets. Most of the other cases had to do with what we call cases of "gross mismanagement''. However, these cases involved allegations, not necessarily established wrongdoing. In most cases, except for a dozen or so, we were able to resolve the issue without any other form of intervention, or to suggest other mechanisms or ways of resolving the problem deemed satisfactory by both parties.
Senator Ferretti Barth: Of those cases, did any involve prosecutions?
Mr. Martel: No, none. In one case, we reviewed all the evidence with the department, to determine whether criminal proceedings should be initiated. However, we were advised by our own legal counsel, as well as the Royal Canadian Mounted Police, that the evidence was not sufficient. However, corrective action was taken in that department to resolve the issue.
[English]
The Chairman: Thank you, Mr. Martel and Dr. Keyserlingk.
Bring on the minister. Minister, is this the beginning of the end or the end of the beginning?
Hon. Lucienne Robillard, President of the Treasury Board of Canada: Who knows?
The Chairman: Can you see light at the end of the tunnel? This has been a long haul for the minister. Regardless of our views on this bill or various proposed provisions contained in it, we recognize that she has personally driven the process and has been a hands-on minister, which we admire and respect. I may also say that we greatly appreciate her forbearance and cooperation with this committee, as well as the cooperation of her officials as we proceeded to study Bill C-25.
[Translation]
Minister, I imagine you have taken the time to read and re-read the testimony, commentary and criticism of the various witnesses who have appeared before the committee.
[English]
The minister is accompanied by Mr. Jim Judd, Secretary of the Treasury Board; Comptroller General of Canada, and by Ms. Monique Boudrias, Assistant Deputy Minister, Task Force on Modernizing Human Resources Management in the Public Service. These officials are well known to us.
Please proceed, Minister.
[Translation]
Ms. Robillard: It is a pleasure to appear before this committee for a second time to discuss the Public Service Modernization Act. You have already introduced the people joining me this morning.
I have followed with great interest the deliberations of the Senate and have read all the transcripts. I appreciate the depth and breadth which your discussions have taken.
I share your clear commitment to the Public Service of Canada and your desire to protect and uphold its tradition of non-partisanship, fairness and excellence. They are principles upon which we will not compromise.
As parliamentarians and as Canadians, we all have an interest in seeing that the Government of Canada continues to provide the public with the high level of service that they expect and deserve. But we also live in a era of changing expectations and demands. We must be willing, and able, to evolve if we are to continue to serve Canadians effectively.
This means having the right systems and processes in place to ensure that we can achieve excellence.
I believe that Bill C-25, together with other management reform initiatives, will allow us to move forward with many necessary changes. I welcome this chance to once again speak to the Bill.
[English]
During my last appearance, I spoke at length about what we want to achieve with Bill C-25. We want to achieve better staffing; more supportive and productive working environments; clearer accountability; and more coordinated learning. I do not intend to go over all of the elements of the bill again. Honourable senators are very familiar with it by now. Instead, I simply want to focus on a few specific areas. I hope that I can clarify some matters and put some of your concerns to rest.
I would like to start with staffing and especially the issue of merit and the need for fair and non-partisan hiring practices. There is broad recognition that the current staffing system is broken. Problems have been acknowledged by the Auditor General and by many witnesses from whom you have already heard. The current system is simply too cumbersome. It forces managers to spend too much of their time focusing on numerous rules instead of allowing them to get the right people into the right jobs when they need them.
Bill C-25 is designed to help rectify this situation. By clearly defining a new approach to merit, we will be able to move away from rigid and prescriptive procedural processes and move towards a regime that is more supportive of our operational realities.
Defining merit is not watering down merit. We are not in any way compromising on important values like non- partisanship. We are not opening the door for unqualified candidates to get jobs. Appointees must continue to meet essential qualifications of the work, which include the experience, skills, education and personal traits necessary to perform the work. Essential qualifications are not minimum qualifications. This is the same basis for assessment that is used today.
I also wish to assure you that Bill C-25 does not eliminate competitive staffing. Today, the Public Service Commission determines the circumstances when it is appropriate to hold a competition and consider many candidates and when it is appropriate to consider one candidate. This will continue under Bill C-25.
The Public Service Commission will continue to make all appointments and to delegate that authority with terms and conditions, to monitor the use of delegated authority and to amend or rescind delegation if necessary.
The Public Service Commission will have the authority to set policy, regulations and guidelines on how staffing is conducted. It will be able to investigate external appointment processes to ensure that they were based on merit. It will have the power to revoke appointments and take any corrective action it considers appropriate. The commission will continue to have the authority to investigate fraud in the selection process and politically influenced appointments.
Bill C-25 proposes to create a new public service staffing tribunal, which will be an independent body completely separate from the appointing authority. It would manage a recourse regime that safeguards against abuse of authority.
These measures afford strong protection to merit and guard against political and bureaucratic patronage.
[Translation]
I would like to turn my attention now to another issue where concerns have been raised by members of this committee, that of expanding competitions to a national area of selection.
We can all agree that moving to a national area of selection is, in theory, a very good idea. The problem lies not with the principle, but in its application. This is a complex issue that cannot be solved overnight. It is necessary, for example, to balance competing issues such as accessibility, efficient use of public funds, and speed of staffing. This is a challenge. Nevertheless, we are making progress.
National areas of selection are already being used for senior officer-level jobs, including executive positions. They are also used for post-secondary recruitment and study recruitment programs.
This is a good start, and we will continue to build on it.
I fully support the Public Service Commission's action plan to gradually increase the use of national areas of selection. I have spoken with my officials and we are firmly committed to providing the PSC with the financial support necessary to put the right tools in place to expand opportunities for all Canadians as quickly as possible.
I particularly applaud the fact that the PSC has committed to reporting to Parliament on progress on an annual basis. This will ensure that this issue remains a top priority for us all.
One area of Bill C-25 that has received overwhelmingly positive reaction is our desire to create the Canada School of Public Service. People recognize the importance of adopting a more integrated and coherent approach to lifelong learning. The integration of learning services proposed in C-25 is key to better delivery of training and development opportunities. This is an important step forward in ensuring that our public service workforce has the capacity and knowledge to better serve Canadians.
However, there is one issue related to the proposed School that has generated some questions. People have asked me why language training was not part of the proposed School's mandate. We have reassessed this issue, and if Bill C-25 receives Royal Assent, I am pleased to announce that the government has decided that Language Training Canada will be transferred to the new School.
[English]
A final area that I would like to touch upon is disclosure of wrongdoing in the workplace. This issue has figured prominently in your deliberations.
As we move forward with Bill C-25 and with other management reforms, the Government of Canada strongly reaffirms its commitment to a public service where employees may honestly and openly discuss their concerns without fear of reprisal. We want cases of wrongdoing brought to light and dealt with.
I believe that we are making progress. We have, for example, worked closely with union partners to address concerns about harassment in the workplace. We recently introduced a new code of values and ethics that was the result of extensive discussion and consultation in the public service. The code includes revised conflict of interest guidelines and updated post-employment measures, and it articulates the values that guide the public service. The code is not just motherhood statements; it has teeth. Anyone who believes that the code has been or is being violated can report it to the public service integrity officer. Breaches of the code could result in discipline up to and including dismissal. The code has been complemented by other important initiatives such as the guide for deputy ministers and a management accountability framework.
These actions comprise one step in the right direction, but they alone will not be sufficient. As Dr. Keyserlingk pointed out in his first annual report yesterday, too many public servants are not aware of the existing disclosure policy or how to use it, and some believe that they are not adequately protected by it. I welcome Dr. Keyserlingk's point of view, and thank him for his thoughtful and judicious comments. We need to respond quickly to the issues that he has raised, and we will.
That is why I am happy to announce the creation of a working group to examine disclosure of wrongdoing in the workplace and to propose concrete solutions. Dr. Keyserlingk has agreed to sit on the working group, and he will be joined by other prominent stakeholders and experts. I want them to look at different international approaches and to propose a uniquely Canadian model that fits our operating reality and reflects our Canadian values and ethics.
This is not an open-ended review process. There is already a considerable amount of existing information and expertise. We are not starting from scratch. Much work has already been done by parliamentarians, including this committee. For that reason, I want tight timelines. I expect that the working group would be up and running within the next few weeks and I would ask for a report by the end of January 2004. I intend to provide this report to parliamentarians for their review. They could consult on these findings and make a final report to the government on further action to be taken, including legislative options. I believe that this is the most prudent and appropriate manner in which to address an issue that is important to all of us, and that has many complex aspects requiring serious reflection.
Make no mistake, I am committed to finding the best possible solution.
[Translation]
Mr. Chairman, senators, you have heard testimony from a wide range of witnesses. You have all had an opportunity to see that not everyone agrees on the specific actions that need to be taken to effect management reform. But there is consensus on one point: something must be done. We need to send a message that reform is possible. That we can continuously improve how we serve the public. Legislation provides the power to change in a way that no other reforms can do.
Bill C-25 represents a balanced, legally sound approach to management reform. It is a solid and well thought-out piece of legislation and it is long overdue.
I should also remind you that the Bill provides for an automatic review in five years. This will allow for a re- examination of the legislation and its application, and for timely revisions, as needed. It will guarantee that we won't be waiting another 35 years to take action if it is needed.
Bill C-25 will make a tangible difference. It is our strongest lever to produce meaningful change in managing our human resources. And I believe it will succeed in accomplishing what it sets out to do: creating a more effective public service to serve Canadians — a public service that can live up to the best of its tradition while moving confidently forward.
My officials and I are now available to take your questions.
[English]
Senator Kinsella: Minister, we have taken note of your initiative to create a working group to examine the issue of whistle-blowing. That is welcomed. As you are aware, this committee of Parliament has been working on the issue of whistle-blowing for about three and one-half years. The committee adopted and reported on Bill S-11. Currently, the committee has a stand-alone bill, S-6, before it. I would like to pass this along to you, minister, so that you may refer it to your working group.
If there is some skepticism, it relates only to the letter of Prime Minister Chrétien on June 11, 1993 to the then President of the Public Service Alliance of Canada, Daryl Bean wherein it was stated that a Liberal government would introduce whistle-blowing legislation in the next Parliament. As I said, this letter was written in 1993 and we have now passed June of 2003. It is now over a decade since the Prime Minister himself, in writing, said that whistle-blowing legislation would be introduced in the next Parliament.
Could you give members of this honourable committee some more assurance that legislation will be introduced, and give us a sense of a timeline when the government would introduce legislation? You can appreciate a little bit of our skepticism.
Ms. Robillard: Senator Kinsella, I appreciate the fact that you recognize that it was not in the Red Book of 1993. At the time, people thought it was in the Red Book. However, what you have read was more by way of responding to a question from a specific union. I think that we are far away from 1993. We are in 2003. As I told parliamentarians two years ago when I introduced the policy — and I have told Dr. Keyserlingk, who was appointed — we will go with a policy approach. We will experiment with the policy. After a certain time, we will evaluate the policy.
This is exactly what Dr. Keyserlingk is doing by his first annual report. That is why I welcome his recommendation. If I read his recommendation correctly, he has said that we need further reflection — not an endless project, further reflection — to decide what kind of institution we want, what kind of system we want with what mandate, with what objective, and how that new institution will be integrated in the current federal structure. That is why I am saying that we should form a task force or a working group of three or four people, not more than that, because I do not want to have a year or two years of work. A lot of work has already been done. I want Dr. Keyserlingk to be part of that group. In the near future, his office will publish a comparative study of other jurisdictions, not only about the content of legislation in other jurisdictions, but what kind of results they have achieved with their legislation. Is this efficient? That is very important to me.
That is why I say, Senator Kinsella, let that group come forward with a further detailed model and let parliamentarians consider what that group will suggest for a Canadian model. As you know, the Government Operations Committee in the House of Commons is very interested in the question. They intend to do further work this fall and I am sure you will be interested in their findings. I would like, at the end of it, for parliamentarians to tell the government if they accept the recommendation of that group, or if they bring some nuance into the system.
Senator Kinsella: Minister, as I said, I welcome your announcement that, within the machinery of government, you have instructed that a working group be created.
Let us reflect for a moment, Mr. Chairman, on the Westminster model of parliamentary democracy. This committee is a legislative committee. As in the other place, there are a number of legislative committees. The executive — the minister — brings before Parliament a legislative proposal. It is then, quite frankly, out of his or her hands. It is then in the hands of the legislative branch. Members of this honourable committee have worked assiduously on this question for over three years. I believe that there is a fair amount of expertise in this committee as we have dealt with this matter. It is our duty to look at it as legislators. We are focusing on the best possible piece of legislation that will instruct the machinery of government as to how it is to operate. We are not the servants of the public service. The public service is the servant of the people who serve the citizens.
In fact, the people are not clients or customers. The relationship between the public service and the citizenship is a very special relationship, which is why we must be cautious in approving private sector models to apply to the management of the public service, although there is much to be learned from the private sector models.
It seems to me that this matter is where it belongs right now; namely, before a legislative committee. The Senate has been open to witnesses since last spring; and in the House of Commons, they were the ones who have apprehended the need to bring in an amendment to this bill to deal with whistle-blowing. Mind you, in my respectful judgment it was kind of a Mickey Mouse amendment; nevertheless, they brought it in and therefore the matter is before us. We cannot ignore it, as we are not ignoring it. If, as we continue our studies and do clause-by-clause, amendments are introduced, they would be based on many years of study and a very careful analysis.
Does the minister recognize that, under our system, the legislators do the legislative work and the executive does the executive work, which includes making legislative proposals?
Ms. Robillard: Yes.
Senator Kinsella: Or are we simply rubber stampers, with the whip being brought down and people voting a certain way because the government tells them to vote that way?
Ms. Robillard: Senator Kinsella, I do recognize the vast majority of your statement about the link of citizens with the government and with the public service of Canada. I do recognize that legislators have done a significant amount of work. You are a legislator. There is a difference between the legislator and the executive.
We also have a Public Service Integrity Officer who experimented daily with a new policy approach in the system, and who makes, I believe, interesting recommendations. I think that we need to reflect on those. In his report, Dr. Keyserlingk highlights the fact that when you disclose wrongdoing, it should be in the public interest to do it.
It is not only a matter of dealing with employment issues, so we do need to have, perhaps, further study.
On one hand we have the report of Dr. Keyserlingk which is based on his daily experience, and on the other hand, you work as legislators to propose a model. What I am suggesting is, why not ask Dr. Keyserlingk and two or three other people to table their suggestions, and then you make a decision. Parliament will decide what is to be done.
Senator Kinsella: Minister, I am pleased with the progress that we have been making, and the distance that you have travelled on this journey. However, as a member of the cabinet of the Government of Canada, I would ask you to bring another matter to your colleagues at cabinet. We have been talking only about the public sector, having a machinery to protect whistle-blowers in the public sector. Indeed, right now, it is only applicable to those who are in the core public service. However, we must deal with the wider public service. Hopefully a working group will look at that.
However, the whole private sector is covered by federal jurisdiction. There are so many areas — whether it is in the environmental field or the health field or the security field — where wrongdoing and illegal activities occur and where, if a conscientious, honest employee blows the whistle, he or she has absolutely no protection.
Would you present to your cabinet colleagues the idea that we should consider a model of whistle-blowing provisions that would apply also to the federally regulated private sector? In order to do that, you must have your own house in order. We are engaged in that process.
Ms. Robillard: It will be part of the process. You are right to say that. Dr. Keyserlingk outlined in his report that there are already four or five statutes that protect people who make disclosure of wrongdoing.
A bill is currently in front of the house. I do not know if Bill C-46 is in front of the house right now, dealing with the financial side. It clearly outlines the protections as they apply to whistle-blowing. We will have to take that into account in our reflections.
The Chairman: Minister, is it correct to say that there is a key difference between the position of the government on the one hand, and that of Dr. Keyserlingk, on the other? Dr. Keyserlingk has come to the firm and clear conclusion that the Public Service Integrity Office ought to be legislatively based, but the government, as I gather from your remarks this morning, is not prepared to make that commitment, even in principle, today?
Ms. Robillard: I would like the working group to take into account the option that we are discussing here and to recommend a model to the government. I do not want to close the door to any options. I do recognize the judicious comments here by Dr. Keyserlingk.
I said two years ago, and it is still my point of view, that, if the policy approach does not work, we will need a legislative base. I was open to that.
The Chairman: As we speak, you and the government are not prepared to commit in principle to the legislative solution; is that correct?
Ms. Robillard: A decision has not been taken by the government — by the executive or by the cabinet — about that. I want to clarify that. I want also to clarify that I am very open to what is being suggested here. However, as Dr. Keyserlingk said in his report, there are many recommendations that need further discussion and analysis to ensure that the right decision is made by parliamentarians.
[Translation]
Senator Gauthier: Dr. Keyserlingk has just given some fairly critical testimony with respect to the current method of operation. He is proposing that his entire office be reorganized. Thank you for your decision on language training — after six months, we have finally received an answer! You said that the government will be transferring language training to a new school. How will that work? What section of the legislation allows you, by means of an Order in Council, to arrange for training to be transferred to the new School?
Ms. Robillard: Under the Act, responsibility for the School is broadly enough defined to allow us, by Order in Council, to transfer language training without any difficulty. There is no need to make amendments; this can easily be carried out through an Order in Council. I should say that this is very important to me.
Senator Gauthier: I understand all that, but perhaps you could explain where the act actually says that?
Ms. Robillard: I will ask Mr. LeFrançois to respond. We will check the clause.
Senator Gauthier: When you talk about training, you are also talking about professional development. They are two completely different things. Training relates to today's requirements, whereas professional development has more to do with future requirements. Training will be a responsibility of the new School of Public Service, whereas professional development will be assigned to deputy ministers. Will they be required to take their language training at the new school?
Ms. Robillard: Under the current system, the Public Service Commission is responsible for language training, but there is nothing preventing a department from using private firms to provide language training. A department always has the option of paying for an employee's training. What is important, beyond the actual courses given, is that the new school be influenced by such values as linguistic duality, and not strictly language training, and that it have an impact on every other training and development project. It is with that in mind that I think it makes sense to turn it over to the new school. Ms. Boudrias can identify the clause for you.
Senator Gauthier: I am not convinced that we will end up with a training program that is consistent across the board, and based on clear and precise objectives in terms of linguistic duality. If every department has the option of selecting its own training or development programs, it is going to be a total mess.
Ms. Robillard: Let us be clear. As the employer, the Treasury Board retains responsibility for training policy. There will clearly be only one training policy for all public servants. Ms. Boudrias is here to identify the clause in the bill for you.
Ms. Monique Boudrias, Assistant Deputy Minister, Task Force on Modernizing Human Resources Management in the Public Service: You will find the information you are seeking on page 172, under the heading Objects and Powers. In clause 4, the bill states that the objects of the school in subclause (e) are to formulate and provide training, orientation and development programs for public sector managers and employees, particularly for those in the public service. We have given a wide interpretation to the wording and therefore do not require amendments in order to transfer the language school.
Senator Gauthier: By creating two organizations that will be competing with each other, we will end up with a two- headed monster. On the one hand, staffing is within the purview of the Public Service Commission, so that all appointments are made by the commission or through delegated authority. On the other hand, where grievances, complaints or problems are involved, people can turn to the tribunal, which will be responsible for handing down a ruling. How will parliamentarians or even public servants be able to distinguish between the tribunal, staffing, or the Public Service Commission? You know, the PSC really is not that big a player. It does not have much power, other than the power to appoint and delegate authority, and yet you want to take away appeals from them. Why are you doing that? Why are we creating two organizations that will be accountable to Parliament and will also be making annual reports to Parliament? They may not get along.
Ms. Robillard: Between the current system and what I am proposing — What are the reasons for my making this proposal? Well, under the current system, you are right that the Public Service Commission has an Appeals Section. Now, when people are appointed to the Appeals Section, they work totally at arms length from the Public Service Commission as regards their appeals role per se. What we wanted to do in Bill C-25 — because we have received criticism to the effect that we basically had the same authority appointing someone and handling appeals related to the appointment. After discussions with a number of stakeholders, public servants, and unions, we realized that the fact that the same authority was responsible for determining appointments and reviewing appeals lodged by a public servant about that appointment could be problematic. That's why we created a completely independent tribunal, strictly to handle internal appointments.
In addition, Senator Gauthier, the Appeals Section of the Public Service Commission does not concern itself with the treatment received by a specific individual or public servant X. It looks at the process followed for the appointment. But when all is said and done, the individual wonders why he or she wasn't appointed to the position and is unsatisfied with the result.
Now an independent tribunal will be responsible for reviewing the file of a public servant who believes that he or she is the victim of abuse of power on the part of an immediate superior. An amendment was passed in the House of Commons which clarifies our understanding of such concepts as abuse of power and personal patronage. The tribunal will determine whether or not there has been an abuse of power, and if so, the appointment will be rescinded. This is an additional guarantee that our employees will be treated with fairness in the selection process.
Senator Gauthier: Both will be able to rescind an appointment — in other words, both the Public Service Commission and the tribunal, is that correct?
Ms. Robillard: They are two separate things. The Public Service Commission will retain responsibility for external selection. It will be able to investigate, verify or revoke. Where internal appointments are concerned, the tribunal will make the determination. However, the Public Service Commission will still be able to ascertain how the deputy head defined the specific qualifications and requirements. Also, in cases of fraud brought to its attention or cases where political influence has affected an appointment, it will be able to take action. They are two completely separate mandates. There is no duplication here.
Senator Gauthier: Did you hear Dr. Keyserlingk's testimony earlier?
Ms. Robillard: Only part of it, because I arrived towards the end.
Senator Gauthier: We discussed how his organization is funded, and the fact that when one is receiving one's funding from the Treasury Board, one feels obliged to pay close attention to what the Treasury Board wants. So, there is a conflict there. As regards officers of Parliament — at least the five best known officers, including the Solicitor General and the Commissioner of Official Languages, how exactly will these organizations be funded? Supposing Dr. Keyserlingk is right; he wants his office to be completely at arms length from the Treasury Board and to be funded by Parliament, but in a different manner. Have you considered that option?
Ms. Robillard: Yes, Senator Gauthier, but I think it is important to make very clear distinctions with respect to the status of these individuals. You are right when you say that five separate individuals report to Parliament; they are considered to be officers of Parliament; the Solicitor General, the Chief Electoral Officer, and the commissioners we are all aware of. All of these individuals are required to submit a budget request that is reviewed and subject to a decision by Treasury Board, as with every other department. Together they are developing a template — I met with them recently — with a view to proposing a new decision-making process for their budget allocations.
I am waiting to receive their suggestions, which I will review with them. At the same time, the Public Service Integrity Officer is not an officer of Parliament. If legislation is passed one day and he becomes an officer of Parliament, he will be treated in the same way as others, if we opt for a new decision-making process.
Senator Gauthier: As Senator Kinsella has suggested, you should involve parliamentarians in your process. Keep us informed of where you are going with this whole issue, both with respect to whistleblowers and the matter I have just raised with you.
Ms. Robillard: As regards officers of Parliament, they have formed a group and will be tabling a proposal. I have been assured that this proposal will be brought to the attention of parliamentarians.
[English]
The Chairman: Ms. Robillard, I have a question on a related point. With regard to the monitoring and supervisory functions of the PSC, what undertaking are you prepared to give to the committee today to assure us that the government will provide the PSC with the resources required to do those jobs? We heard some fairly alarming testimony from various sources about the inability to do that job now, let alone under the new circumstances that would be created by this bill. That inability included a precipitous decline in the number of auditors at the commission over a period of years. Are you concerned about the commission having the required resources to do the job properly?
Ms. Robillard: I am always concerned that the agents of Parliament, the commissioners and others, receive adequate resources to deliver on their mandate. Currently, the Public Service Commission has a budget of $130 million and 1,400 employees. With changes to the mandate of the commission, we would have to evaluate the needs of the commission. What should we change?
First, some of their responsibilities would transfer to the employer. The appeal division would not be in place. We would create a new tribunal. Differences between the current commission and the new commission would be created if the bill were passed. We would look closely at the resources required for the commission to fulfil its mandate. As senators are aware, the Public Service Commission of Canada would remain, under Bill C-25, a hybrid organization bearing two responsibilities, the audit and the executive, because they are responsible for nomination.
That is why you cannot consider the commission an agent of Parliament in the same way as the Auditor General or other offices of Parliament are considered. The commission is a hybrid organization.
The Chairman: On that point, the House of Commons has amended this bill such that henceforth the president of that commission would be appointed by parliamentary resolution, in effect.
Ms. Robillard, there is increased delegation in this bill, and the assurances that you and the government are giving to Parliament and to the people of Canada are to the effect that the safeguard for the merit principle — for protecting against abuse, et cetera — reside to a great extent with the Public Service Commission and its audit and supervisory function. The commission is pleading, and certainly a number of witnesses have pleaded before this committee, that it does not have the resources to do that job properly. I want the committee to be satisfied that the government understands that there needs to be the resources for the commission to carry out these important new responsibilities that would be given to the commission,
Ms. Robillard: It is clear, Mr. Chairman, that under Bill C-25 we would reinforce the role of the commission in the protection of merit, which would be the audit role. That is clear to me. It is also clear that I have asked the government to provide new funding to implement the proposed legislation. This is a big change in the system, not only for the Public Service Commission, but also for all relevant stakeholders. I can assure you that this would be a part of the legislation when this bill is passed, if we want to meet with success. The Public Service Commission will come before you to table its annual report to Parliament. If it is to prove that it operates efficiently and effectively, then it is my responsibility to ensure that it has the requisite resources to fulfil its mandate.
[Translation]
Senator Comeau: I would like to come back to the matter raised by Senator Gauthier regarding the transfer of language training in Canada.
Have you considered the possibility of using existing schools in the various regions of Canada to provide language training or development? Some excellent schools already exist. Rather than transferring that mandate to the new school, why not use schools that are already up and running in Canada?
Ms. Robillard: At the present time, responsibility for language training rests with the Public Service Commission, and as the employer, we are responsible for developing a language training policy that everyone will be required to follow.
At the same time, we have not in any way ruled out the possibility, as part of the current system, of using community language schools in certain areas of the country to attain those same objectives. In the Official Languages Action Plan, funds have been set aside to assess language training governance, to be certain that we are making the best possible use of the funds allocated, in order to achieve concrete results.
This matter will be reviewed in the coming months in relation to the governance structure, but the new School of Public Service will be taking that on.
Senator Comeau: When you give a mandate to an agency or a school, that agency has a tendency to want to retain its mandate, rather than sharing responsibilities and services with other schools. I see that on page 172 of your bill, it says that the school will be responsible for developing and implementing this project.
Previously this responsibility rested with the Public Service Commission. Development was carried out by the commission; now it will be carried out by the school.
You are transferring another service from the commission to the school, meaning that the commission's role will again be diminished.
In addition to that, once this falls within the school's mandate, will the school want to transfer its responsibilities, or at least the responsibility for training, to other agencies?
I see nothing wrong with our public service making contact with other Canadians, and I think it might a good idea for public servants to have an opportunity to take training in places where other Canadians are receiving language training and development.
That kind of thing would be practically impossible with the change that is being proposed here.
Ms. Robillard: I certainly would not want you to have that impression, Senator Comeau. I will be asking my secretary to elaborate on that further.
I suppose one could see this as resulting in a diminished role for the Public Service Commission. But it is important to remember the intent of the bill that is before you now. Over the years, a great many operational responsibilities have been delegated to the commission. Language training is the employer's responsibility. Yet it was delegated to the Public Service Commission, along with a lot of other responsibilities, rather than to the Treasury Board Secretariat. As a result, we now have a Public Service Commission that wears several hats. With Bill C-25, we are attempting to ensure that it retains authority for appointments and truly concentrates on exercising its responsibility to uphold the merit principle; therefore we are proposing an enhanced role for the Commission with respect to audit and supervision. However, all the other operational responsibilities are being transferred to other institutions.
The whole point of the Official Languages Action Plan is to examine governance of language training. That will be carried out with the Treasury Board as well. We will be looking at this to ensure we have the most effective possible system in place. And it will certainly be possible to do that in cooperation with the school.
Mr. Jim Judd, Secretary of the Treasury Board and Comptroller General of Canada: Under the current official languages training system, this operation is carried out jointly by both the government school and private schools all across Canada. That will continue to be the case for reasons of capacity and system efficiency. We simply do not have enough language teachers and have no choice but to use private resources.
Senator Comeau: I agree that that will continue. However, when you give a new school a mandate — and here I am speaking from experience — the fact is it may want to engage in a little empire building.
And that leads me directly to my second question: have cost estimates been prepared for this new School, which has been given new responsibilities and a new mandate? Will there be operational costs? Do we have estimates?
Ms. Robillard: We are merging existing organizations with their budget. I want to reassure you with respect to your concern that they will not be using other institutions. Now we will be merging the Canadian Centre for Management Development and Training and Development Canada, plus language training.
The Canadian Centre for Management Development is a centre that currently works in partnership with educational institutions across Canada, and particularly with colleges and universities. They do not give all the courses. So, that is the direction we are already moving in, and they will not have the capacity to provide all the training.
The Canadian Centre for Management Development already has a budget, as does Training and Development Canada. These two organizations will merge. The funding and the language training will come together.
With that budget and the accompanying human resources, they will be in a position to meet their commitments.
Senator Comeau: So, there is no budget at this point?
Ms. Robillard: No, not at this time.
Senator Comeau: The committee will want to draw attention to that fact, given that training is now a statutory responsibility. They have a legislative mandate to provide training.
Ms. Robillard: That is the case now. We already have the Canadian Centre for Management Development Act. So, there is a legislative basis.
Senator Comeau: With respect to the review of ethical values that you mentioned this morning, did you ask your task force to consider the situation of agencies such as the Canada Customs and RfForce to take a look at agencies that are now a little further removed from government?
Ms. Robillard: Yes, that is part of their study. One of the recommendations made by the Public Service Integrity Officer is to broaden that mandate to the public sector as a whole. So, the answer to your question is yes, that will be part of the task force's mandate.
[English]
Senator Finnerty: It seems that the legislation before us makes it difficult for civil servants to seek public office, including municipal office, where politics are not partisan. Is there any evidence that there is a problem with public servants' participation in political activity? Has any public servant recently been disciplined for that? Is the Supreme Court guidance regarding political activity unclear?
Mr. Michel LeFrançois, General Counsel, Task Force on Modernizing Human Resources Management in the Public Service: The provisions related to political activities in the Public Service Employment Act dealt with in Bill C-25 were, indeed, a codification of the law as stated by the Supreme Court of Canada in 1991. It now sets out the principles that the court set out in that decision, and in the future the Public Service Commission could set out regulations in keeping with those principles to make the rules applicable to political activities for public servants clearer and more concrete.
Senator Oliver: Mary Gusella, the Chairman of the Human Rights Commission, had a letter prepared by a lawyer, Mr. Ed Ratushny. The letter is dated May 7, 2003. It was widely circulated and I understand it is well known in Treasury Board. I will not repeat the details of his opinion. However, he suggests that:
Bill C-25 neglects the fundamental nature of the Canadian Human Rights Act and the corresponding roles for the Commission and the Tribunal. It transfers human rights adjudication in relation to an important constituency to an arbitration process which is limited in its capacity to fulfil that role.
He goes on to say that there could be major problems because of this apparent drafting oversight. He recommends an amendment to section 210. My first question is: Do you agree with that proposed amendment as something that can clarify a major problem in the future for both the Human Rights Commission and the tribunal?
My second question relates to the fact that much of this framework legislation deals with non-partisanship. One of the things that you recommend is the removal of the three full-time commissioners and appointing a number of part- timers. A number of witnesses who have appeared before us have suggested that this would be a major mistake and that there should be three commissioners and that they should be full time. It would avoid potential partisanship in the appointment of people who control the Public Service Commission.
My third question relates to visible minorities. I was disappointed that you did not, at any time in your address today, deal with any of the issues in relation to visible minorities. It is my opinion that fundamental to issues of staffing and merit is the issue of visible minorities in the Public Service of Canada today.
The public service should reflect the mosaic of Canada. It does not, particularly in the "ex'' categories. It does not because of barriers and racism.
It seems to me that modernizing legislation, such as Bill C-25, should deal with it directly, not just in the preamble as it does here, but in a substantive way. Visible minorities are still being denied access to the "ex'' categories.
I am familiar with the report of Frank Claydon prepared for the clerk that outlines the many barriers. I am disappointed that nothing is being done in this proposed legislation to promote visible minorities and break down these systemic barriers. It is a major disappointment to me.
Ms. Robillard: Those are three very important questions, Mr. Chairman. First, do I agree with the proposal of amendments by Professor Ratushny? The answer is no. Why? I have with me today the expert from the justice department, Bill Petney. I will ask him to discuss that further.
Mr. William Pentney. Senior General Counsel, Public Law Policy Section, Policy Sector, Department of Justice: Professor Ratushny, who is a well-recognized expert in the field, has underlined a problem that he perceives in the legislation. I will begin by signalling the importance, which I think Professor Ratushny in his opinion and testimony, has underscored, of consolidating the ability of a single grievance to deal with all of the relevant matters. He is saying that, unlike the current situation, it would be better for adjudicators to be able to deal with, as part of a whole host of potential complaints, the human rights aspect. One of the policy objectives of this legislation is to prevent repeated complaints from having to wander around Ottawa trying to find the right home for the resolution of the grievance.
He is underlining in his testimony is that he believes that there is a problem and that, in exceptional cases, the commission should be able to remove a case unilaterally from the adjudication process and transfer it to the human rights process where certain criteria that he has laid out are met.
We think this is the wrong approach for three reasons. First, Professor Ratushny indicates that he thinks the commission will never appear before the adjudicators because doing so would give rise to an apprehension of bias. While we accept that, depending on how the commission acted when it appeared, it could put itself in a position of bias if it vociferously argued in favour of the griever or employer, it would find it difficult later on to address the complaint. We absolutely agree. However, it is also true that the commission now regularly intervenes in cases up to and including cases at the Supreme Court of Canada to present its views on the law.
If, in the context of adjudication it is important for the adjudicator to understand what sexual harassment means in the eyes of the Human Rights Commission or what the duty to accommodate a person with a disability means in the eyes of the Human Rights Commission, this statute provides the opportunity for the commission to go to the adjudicator and explain that, and say nothing about the merits of the case. There is a series of Supreme Court cases where the commission has already done that and provided the benefit of its expertise to the Supreme Court.
The second element is that Professor Ratushny argues that the adjudicators will lack the necessary expertise. It should be noted that most other labour codes, including the Canada Labour Code, already provide to adjudicators the opportunity to deal with human rights matters.
A great amount of very important human rights jurisprudence comes not from human rights commissions, boards of inquiry or tribunals, it comes from adjudicators. I would suggest that probably the most important decision in the last several years in human rights was the Meiorin case, which defined the duty on employers to accommodate employees and the opportunities for providing complaints and defences. British Columbia (Public Service Employee Relations Commission v. British Columbia Government and Service Employees' Union (BCGEU) or Meiorin as it is called, is celebrated as a leading human rights decision. It is the most important decision in the last several years from the Supreme Court. It originated from an arbitration, not from the B.C. Human Rights Commission. There is a whole series of existing cases where adjudicators have demonstrated their expertise.
If adjudicators or the tribunal needs more expertise, it could arrange training. It could draw on the resources of the commission and other experts for training. We do not believe that it should necessarily be the conclusion that these adjudicators will lack the expertise.
I would add that in these kinds of cases you have two choices. One is to educate the human rights experts in the tribunal on the intricacies of staffing — and they will have to learn Bill C-25 — or take those who know Bill C-25 and give them the context they need to better appreciate and understand the issue before them.
Last, and I think probably most important, this legislation is founded on the idea that the employee should be able to seek quick and easy redress for grievances and complaints. Under Professor Ratushny's proposal, we would see a situation arise, perhaps, where the union, supporting the griever, would have prepared all of the evidence it believed necessary to file a complaint pursuant to adjudication. The employer would have prepared all of its evidence and have its lawyers lined up and be ready to go. The commission would appear, under Professor Ratushny's approach, contrary to the wishes of the griever, contrary to the wishes of the union and, presumably, contrary to the wishes of the employer since the employer is prepared and ready to go, would unilaterally take that complaint over to its own process.
The commission in its own process would then have a statutory responsibility to investigate the complaint. To try to make a decision as to whether a further inquiry was warranted, it would then have to refer the case to a tribunal, which would then begin the hearing that the parties were ready to start potentially several months before.
We believe that it is important to allow grievers to be able to have a final resolution to the extent possible of their complaints. If the commission finds a significant human rights matter is being brought forward to an adjudication, it has three choices. First, it can appear before the adjudicator and explain to the adjudicator how it believes the law — not speaking to the merits of the case — ought to be interpreted. Second, it can initiate its own complaint under the Human Rights Act and begin a process of investigation potentially leading to a hearing under the Human Rights Act. Third, it can file a special report with Parliament or include the results of its inquiry in its regular annual report to Parliament.
This legislation gives rights to grievers, and it adds a new opportunity for adjudicators to deal with human rights complaints. It adds the opportunity for the commission to be advised of that, but it does not in any way diminish the existing statutory authority of the commission to initiate its complains, to participate in the adjudication hearing or to file a report on the matter to Parliament through its existing annual report.
The second question was about the three commissioners. First, I would like to emphasize that the current legislation does not specify whether the president or other two commissioners are full-time or part-time. Under Bill C-25 we would evaluate the workload of the commission in the future.
As you know, we would transfer some responsibility to the employer, such as promotion, deployment, probation and qualification standards. We would transfer the appeal section to a new public service tribunal and we would also transfer training to the new school.
There would be a completely a new Public Service Commission under this bill. According to the study, we would not need three full-time positions. In your transcripts, some people compared that to the Auditor General or another Officer of Parliament but let me be clear that it is quite different. The Auditor General is alone in her position, although she has a staff. Currently, the Public Service Commission has 1,400 employees and the president of the PSC also has assistant deputy ministers. We think that they could do the job under Bill C-25 as it is written, and the process to appoint them would be exactly the same as the one that we have now — full-time or part-time — except that the House of Commons has included an amendment to the appointment of the president of the Public Service Commission. I agree with that amendment completely.
The third question is about embracing change.
Bill C-25 disappointed you, Senator Oliver, in respect of the equity or level of representation of the Public Service of Canada. Senator Oliver, on the contrary, I am happy with Bill C-25 in that I believe it will help us to reach our goals in that area, because we currently have many problems, as you know.
Senator Oliver: Where is the one in five? It is not in there.
Ms. Robillard: You will not find the one in five in there, but look at what is in Bill C-25. First, it is important that it should be in the values outlined in the preamble. It is an important value.
Second, clause 34.1 in Bill C-25 states that the appointment process would be open only to members of designated groups. The bill also permits a larger area of selection for designated group members, while using a smaller area of selection for others.
It is clear that what we have before us is enabling legislation. We did not go into all of the details, but with the flexibility provided in this bill, managers will be very pleased because they will be able to fulfil their commitment to reach their goals.
Currently, how can that be done? Now, the evaluation system for some who apply to the public service requires that they be ranked one, two, three, four, five, six, et cetera. If there are 100, you still have to rank them. If you have an objective to increase the number of visible minorities in your department but number one is not a visible minority, you are caught; you cannot hire him. Bill C-25 would allow for a competency evaluation of all applicants to the public service, and because there would be representation goals in the department, the applicant who best meets the objectives would be selected.
In my opinion, Bill C-25 would facilitate the objectives that we have for visible minorities in the public service. It would become a reality more rapidly. We have to do it.
Senator Cools: I have not been involved in some of the proceedings on this particular issue of Bill C-25 because I am no longer a member of this committee. When we talk about arbitrariness and fairness, we should find a way for some of that to apply to the two Houses of Parliament, but that is a question for another day.
My question is about the oath of allegiance. On June 17, I raised some questions about the oath of allegiance. I believe that I communicated at the time my rather deep and profound concern that the oath of allegiance for public servants was being altered or eliminated. I had asked that you reconsider that.
This morning, I reviewed the testimony of Mr. Michel LeFrançois. I must admit that I find it as discomfiting as I found it last June. Perhaps we should start at the beginning. I had asked you to reconsider, and I am now eager to know the consequences of your reconsideration. I had great difficulty accepting that Mr. LeFrançois and your department could possibly believe that an alteration, such as the removal of the oath of allegiance, could possibly be conducted without consulting Her Majesty's representative, the Governor General. Perhaps we could begin at that point.
Under the laws of Parliament, we have rules such that any matters that touch upon the prerogative of Her Majesty require a Royal Consent to move forward in the Houses. To buttress my position, I would cite the Constitution Acts 1867 to 1982, and particularly section 9 which states:
The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
I could cite several sections in that regard. "Vesting'' is an interesting word. It is the law of allegiance, and the moral force that it provides has undergirded constitutional order.
I am of the opinion, Mr. François, that you were quite wrong in your testimony. Matters like this simply cannot be changed in such a whimsical way. The subject matter is substantially deeper and a little more complex than some seem to suggest. May I have a response?
Ms. Robillard: Of course, Senator Cools, you may have a response. I am happy to see you here today, and I am pleased that you have raised this issue again, because we did take your concerns very seriously after my appearance here. Again, we reflected on the matter and did further research. Mr. LeFrançois, who worked with me on the bill, consulted with some experts at the Justice Department and Senator Murray this morning. I also invited a constitutional expert from the Justice Department to attend, so that we can be sure that we have the right answer. With me is Mr. Henry Molot, whom I will ask to address this question.
Mr. Henry L. Molot, Q.C., Senior General Counsel, Constitutional and Administrative Law, Department of Justice: Honourable senators, the question of Royal Consent, if we can start there, assumes that there is a Royal Prerogative being interfered with by the legislation, which gets us back to whether or not the oath of allegiance in the current act has anything to do with the prerogative.
Senator Cools: I see. You are going back to the beginning. I will meet you there.
Mr. Molot: The prerogative, as you know, is quite old and originates in the mists of time, you might say.
My research indicates that it is true that, in terms of the allegiance that the subject owes to the sovereign, there is probably implicit in that an oath of allegiance, but just in terms of the subject-sovereign relationship. Independent of that is the holding of offices and whether any oath of allegiance is attached to the holding of an office.
Although a few prerogative offices there might be a prerogative requirement of an oath of allegiance, most prerogative offices do not require an oath of allegiance. In today's world, most offices are not prerogative offices anyway; they are statutory offices, which do not carry any requirement or duty of a prerogative oath of allegiance. It stands to reason that, since the oath of allegiance you are speaking to is based in the prerogative, if it is a statutory office, there is no prerogative oath of allegiance attached to that.
Senator Cools: Your claims are extraordinary and very wrong.
Mr. Molot: If we go back to the oath of allegiance attached to statutory offices and many prerogative offices, you have to go back to the promissory oaths of the Oaths Act of 1868, a U.K. statute, where there is a formula, an oath of allegiance, and then an indication of who has to take that oath of allegiance. It is grounded in statute.
Senator Cools: Let me ask you, Mr. Molot, because I am afraid that you are taking the committee on something of a wild goose chase, first, where does allegiance come Second, what is the source of citizenship in this country if it is not a prerogative power? Let us stay with the issue.
Ms. Robillard: That is different.
The Chairman: We are not going to be able to stay too long on this point. Excuse me, senator.
Senator Cools: Allegiance is owed by the citizen.
The Chairman: I am not entering into the substance of the argument. The difficulty is that we could go on for many hours on this subject, and we have five minutes and two or three other senators who wish to intervene. You have put your questions, I think. Have you understood them, Mr. Molot?
Mr. Molot: I think so. With citizenship in this country, most offices are statutory. Citizenship is statutory.
Senator Cools: The granting of citizenship is not statutory. The grant is a prerogative.
Mr. Molot: No, it is pursuant to the Citizenship Act.
Senator Cools: No, the statute lays out the conditions under which it can happen, but the grant is a prerogative.
Mr. Molot: All of the conditions, as you say, are statutory. The conditions then become any oaths that are required of a citizen.
Senator Cools: Obviously, what I am hearing here is that the issues and the questions that I have raised have been dismissed. The fact of the matter is that lawyers come from the Department of Justice, and we can never, ever get their sources or their authorities. We just get a say-so and declarations.
I would be extremely pleased if this committee would undertake a serious study of the question of the sources of this power. I am of the opinion that it is just not a whimsical matter and that the oath of allegiance can be dispensed with, and Parliament being asked to comply with it as would a collection of trained seals.
The notion of our system is that there is a constitutional order, and the cabinet's first duty is to uphold the constitutional order. Our constitutional order says that the sovereign is our queen, and there is a law of allegiance that then comes into force in terms of upholding that constitutional order.
You have reached your conclusions and you have adopted a position, but you are not showing me how or why you reached that position. Essentially, what I am hearing the minister saying is that she is not about to reconsider anything.
The Chairman: The general subject is a profound one.
Senator Cools: Extremely.
The Chairman: And your difference of view with the law officers is a profound one.
Senator Cools: They are not the law officers of the Crown.
The Chairman: You believe that a committee should take it up.
Senator Cools: Yes, very seriously.
The Chairman: Perhaps one should. It strikes me that the general subject is not a matter for the National Finance Committee, but rather for Legal and Constitutional Affairs.
Senator Cools: The bill is before us, but it matters not which committee deals with this. As a matter of fact, I think it is a matter for the Senate as a whole. However, bill after bill comes to us with these considerations and these corrections. Department of Justice lawyers tell that they have looked at it and it should be the way it is. I do not think that is the proper way to proceed. There are other considerations, because we are talking about the exercise of power. When you look at the exercise of power, the law of Parliament and the law of the prerogative are supposed to buttress the passing of statutes. That is not what has happened. We have had lawyers come here before and tell us there is no prerogative. They said that with respect to Bill C-20.
The Chairman: Senator, we cannot pursue the matter further today. You will have to pursue it in debate, and I know you will.
Senator Cools: What does it matter? They just overrule you.
Senator Beaudoin: I have a very different question.
[Translation]
Senator Beaudoin: I have always believed that the merit principle is without a doubt one of the most important principles in the public service. Indeed, Senator Bolduc recently commented on that very issue.
Are we moving towards a system that takes its inspiration from the corporate model currently in use in the business world? Does the system proposed in Bill C-25 fully incorporate the merit principle?
Ms. Robillard: You raise an important issue, Senator Beaudoin. I did in fact read Senator Bolduc's comments on that regard.
Bill C-25 clearly reaffirms that staffing in the public service must, first and foremost, be carried out on the basis of individual merit and competence. Indeed, it underscores that requirement in a number of places. In the preamble, we have identified the values which should be the starting point for any and all activity in the public service, and we specifically refer to the concept of merit and competence.
I would have to agree with Senator Bolduc. The current legislation refers to the merit principle, but it has never been defined. What has happened over the years? Well, the courts have defined the concept of merit over the years, to the point that the system has become extremely complex and cumbersome. I can assure you that the most recent rulings handed down by the courts with respect to merit are quite something and only drag out the process.
A recent decision dealt with tests that candidates are required to take as part of the selection process. Every single answer had to be evaluated, as well as the way in which answers were marked for every question on the test. That resulted in considerable jurisprudence. And what did we ultimately achieve through all this jurisprudence? Well, managers found ways of hiring more temporary or casual employees and less indeterminate staff, in order to avoid having to deal with these kinds of issues. That jurisprudence had the effect of prompting managers sitting on selection boards to be far more concerned with jurisprudence, as a matter of course, than with exercising their own judgment or determining who was the most competent candidate.
What were we trying to do in Bill C-25? First, we wanted to reaffirm the merit principle, so that without necessarily eliminating jurisprudence, at least it would not continue to build at the same pace. We also made a change by not only setting it out as a value in the preamble, but actually providing a definition of merit in the legislation. And in order to establish significant parameters, we told the Public Service Commission: in addition to being responsible for merit- based appointments and delegating that responsibility, would you also like to enhance your role in terms of protecting the merit principle and be in a position to do more evaluations and audits, to ensure that the system is indeed based on merit?
Senator Beaudoin: That is something that we are responsible for defining, not the courts. When you say that jurisprudence built up over the years, well, that is because we never defined it.
Ms. Robillard: Yes, exactly.
Senator Beaudoin: My view is that we do not always draft clear legislation. As a result, the courts step in because we have not defined things as we should. I am not referring to Bill C-25 in particular; I mean that as a general comment. I think we should do our work properly, which means drafting very clear, very precise clauses. If we don't do that, the courts will step in and do it for us.
Ms. Robillard: I agree with you, Senator Beaudoin, which is the reason for clause 30 in the bill you are currently considering. That clause provides a definition, with a legislative base. It provides a definition of merit. You can find that in the legislation itself, in a specific clause. That directly addresses the point you have raised, and the fact is that we included that, while at the same time retaining the Public Service Commission's authority to issue policies and conduct audits to determine whether there is compliance with their policies across the public service. That is the point that you raised. All of that is in Bill C-25.
The Chairman: To conclude, Senator Gauthier and Senator Day would like to make some very brief comments.
Senator Gauthier: I have been listening to your comments and I am quite surprised. Legislation is always discretionary. Regulations are not. The courts have interpreted non-discretionary laws. Legislators draft laws that provide as broad a discretionary power as possible. We do not know anything about regulations, so we don't get involved in that.
The Official Languages Commissioner has told us that there is nothing in Bill C-25 with respect to notices of competition, yet heaven knows how many hundreds of thousands of notices of competition are issued every year. If a Canadian feels that his or her rights have been violated because the notice of competition was not published in both official languages, based on what I see in this bill, the tribunal will not have jurisdiction and will not even be able to conduct an investigation. Could I get an answer on that?
Earlier I was saying that the Public Service Commission has one head and that the other head is the Tribunal; so, who is right? The Tribunal may tell the Commission to revoke an appointment, but they can't conduct an investigation when there has been a failure in the process. Do you have an answer to that?
Ms. Robillard: Senator Gauthier, I hope I understand what you are asking. If you are referring to what the Official Languages Commissioner said with respect to the language of staffing notices, I want you to know that the current Public Service Staff Relations Act predates the passage of the Official Languages Act. In the meantime, the Official Languages Act came into force, and it clearly provides that employment opportunities must be open to both French- speaking and English-speaking Canadians; it also stipulates that communication with the public must be carried out in both official languages.
I see no problem with that, given that the Official Languages Act is very clear on that point. The Public Service Commission is required to comply with the Official Languages Act.
You have referred to the Tribunal. There are two ways of accessing the Public Service Staffing Tribunal. One is for abuse of power, and the other is for cases where an individual has not been evaluated in the language of his or her choice. Public servants who feel their rights have been violated because they were not evaluated in their own language can lodge an appeal with the Tribunal, and if their case is proven to be well founded, the appointment can be revoked. Mr. LeFrançois, would you like to add something?
Mr. LeFrançois: If the tribunal determines that the complaint is justified, it can order either that the appointment be revoked, or if it has not yet been made, that it not become effective.
Senator Gauthier: Yes, I am aware of all of that, but that is not my question. Bill C-25 has no provision to that effect, as far as I can see. Perhaps you can direct me to one that re-states what was previously an obligation on the part of the commission. All positions have to be advertized in both official languages. But there is nothing in Bill C-25 that actually says that.
Ms. Robillard: Perhaps I did not make myself clear enough. You are saying that this does not appear in Bill C-25. Why? Because the current legislation was written before the Official Languages Act was passed. Now we have the Official Languages Act. We saw no need to repeat what already appears in the Official Languages Act in Bill C-25 in that regard or on any other matter related to official languages. The Official Languages Act is already a very major priority compared to other pieces of legislation, is it not?
[English]
Senator Day: Senator Cools did not take comfort in part of the testimony of Mr. LeFrançois. I took some comfort in it, but I felt there may be some outstanding issues. I asked the minister a number of questions. She answered those questions in a letter dated September 3, 2003. I wanted to be assured that all of the members of the committee have received a copy of that letter, Mr. Chairman, If they have not, perhaps it could be shared, because it does help.
The Chairman: The clerk has only just received the letter and will circulate it. I have not seen it.
Senator Day: I think it is helpful in explaining why Bill C-25 has selected the oath of office and secrecy as appropriate for all employees.
Ms. Robillard: Mr. Chairman, I wrote that letter to you on September 3 in response to all these questions.
The Chairman: The clerk will circulate it. It remains only for me on behalf of members of the committee to thank the minister and her officials for having explored some aspects of this bill so thoroughly with us this morning.
Now, colleagues, we have some decisions to make. First. do you wish to proceed tomorrow evening with clause-by- clause consideration of this bill?
Senator Day: Yes.
The Chairman: In that case, senators, we will meet here the 6:15 p.m. Prior to that, supper will be served to members of the committee, in room 520 at 5:30 p.m.
Second, this bill has 268 clauses in nine parts. You can help facilitate the chair's conduct of the meeting tomorrow night. Those who have amendments to propose, should come sometime before the close of business today, and let me know. The chair will then try to get the committee to focus on the proposed amendments first. If the committee agrees, we will try to group the clauses by way of the nine parts of the bill and put them to the committee for their approval or otherwise.
If you have amendments to propose, I would appreciate it if you would let me know, informally, what clauses you propose to amend. I would appreciate being advised of that sometime today.
Senator Day: Mr. Chairman, on that point, it would be helpful if amendments could be made available ahead of time so that we can study them and understand the implications.
The Chairman: If you wish to cooperate with colleagues, that would be helpful.
There is another date to mark in your agenda. On Tuesday, October 30, we hope and expect to have officials from Treasury Board here to discuss the Supplementary Estimates. Those Supplementary Estimates are to be tabled on September 23. We have organized a meeting a week later to hear from officials of the Treasury Board. The parliamentary library will supply briefing notes.
Finally, colleagues, I have had a letter, as have all committee chairs, from the chair of the Standing Committee on Internal Economy, Budgets and Administration. Senator Bacon is concerned about the budgets of the various committees. She wants to know about cash flow, and whether we think that we will use the entire budget that we were granted last April, before the end of March 2004.
I have had a look at the situation. The amount of $20,000 was allocated to us for expert consultants on some matters, which it looks like we will not need. There is another $6,000 for a conference that we did not attend because it conflicted with some of our hearings.
I am proposing, with your agreement, to send $26,000 back, on the understanding that, in the case of an emergency, I will be asking to retrieve it. If that is agreeable, I will so advise the chairman of the Internal Economy Committee.
Hon. Senators: Agreed.
The committee adjourned.