Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence, September 25, 2006 - Morning meeting
OTTAWA, Monday, September 25, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 9:39 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. Before proceeding with the business of the day, Senator Day has an intervention with respect to a letter.
Senator Day: Thank you, Mr. Chairman, and good morning. On Friday, the committee received a letter, which has been filed with the Clerk of the Committee and distributed to committee members, from Mr. Jean-Pierre Kingsley, Chief Electoral Officer of Canada, that deals with the production of documents by the Conservative Party.
Senator Stratton: Forgive the interruption, Mr. Chairman, but it is my understanding that Senator Day would speak to the letter tabled on Friday by Mr. Steven MacKinnon, National Director of the Liberal Party of Canada. To my knowledge, no letter was tabled by Mr. Kingsley. That is a fundamental difference. Mr. MacKinnon, who tabled the letter refused to file in writing a response to questions asked by this committee when he appeared on Thursday, September 7, 2006.
Senator Day: No, the letter I wanted to talk about was the reply from Mr. Kingsley.
Senator Stratton: Perhaps we could have the opportunity to ensure that it is circulated to and read by committee members before we discuss it.
Senator Day: Certainly.
The Chairman: I just checked with Mr. Lafrenière, Clerk of the Committee, who said that it was not formally tabled in either English or French. Senator Day, do you have copies in both English and French that can be tabled before the committee?
Senator Day: My copies are marked, unfortunately. These copies were distributed to us late Friday afternoon, probably after the formal session.
Senator Campbell: I have an unmarked copy in English.
The Chairman: I believe that the clerk has both copies.
Senator Day: I propose that we deal with this matter in the same way that we have dealt with other documents, and distribute copies to all members. After the break, we can deal with the intervention I would like to make in respect of the document.
The Chairman: That would be fine.
Senator Day: Thank you.
The Chairman: Honourable senators, this is our twentieth meeting of the committee's deliberations on Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the proposed federal accountability act.
As senators, witnesses and members of the public, both in this room and across Canada watching the proceedings on television, know, this bill reflects a central portion of the new government's agenda. It is one of the most significant pieces of proposed legislation brought before Parliament in recent years. The committee is giving the bill the extensive, careful and detailed study that it deserves. During more than 60 hours of meetings to date, the committee has heard from 90 witnesses.
This week we will consider various aspects of the bill, including whistle-blowing, audit powers and procurement. To begin our work this morning I am pleased to welcome Dr. Edward Keyserlingk, the Public Service Integrity Officer.
The Public Service Integrity Officer provides public service employees with an independent external review of disclosures of wrongdoing in the workplace. In addition to investigating matters in an equitable, timely and confidential manner, the office seeks to ensure that an employee who makes a good faith disclosure is protected from job reprisal.
Dr. Keyserlingk is joined today by Mr. Pierre Martel, executive director of the office, and Mr. Jean-Daniel Bélanger, senior counsel in the office.
[Translation]
On behalf of the committee, I would like to thank you for being here today. With no further ado, I will turn it over to you to make your opening statement, and following that, we will have time for questions and discussion which I'm sure will be extremely helpful to committee members.
You have the floor.
[English]
Dr. Edward W. Keyserlingk, Public Service Integrity Officer, Public Service Integrity Office: Thank you very much, Mr. Chairman, and honourable members of this committee for the invitation and the opportunity to provide my views on Bill C-2 as it relates to the Public Servants Disclosure Protection Act, PSDPA.
My presence before this committee is likely to be my last public appearance before the committee as the Public Service Integrity Officer, as my term ends at the end of November. I am honoured to participate in your deliberations concerning whistle-blowing legislation.
[Translation]
I have long been an advocate for a strong and effective legislated regime for disclosure of wrongdoing in the federal public sector; one which is headed by an independent stand-alone Commissioner reporting to Parliament. This was a central recommendation in my first Annual Report to Parliament in 2003.
[English]
Last fall, this was accomplished with the passing of the PSDPA. The Public Servants Disclosure Protection Act has many elements of what whistle-blowing legislation should contain. Key provisions of that legislation do the following: establish the position of public sector integrity commissioner reporting to Parliament; extend the jurisdiction of the commissioner to nearly the entire federal public sector; provide the commissioner with significant investigative and enforcement powers; allow for the commissioner to report investigation findings and make recommendations when wrongdoing is established; include a clear legal prohibition to take any reprisal action against public servants who made disclosures; and authorize the commissioner to make annual and special reports to Parliament.
The amendments now contained in Bill C-2 aim at strengthening even more the legislative provisions of the Public Servants Disclosure Protection Act. Overall, I welcome them.
These stronger provisions propose the following: guarantee direct access to the public sector integrity commissioner by public servants; authorize the commissioner to receive, investigate and address complaints of reprisal; create a dedicated public servants' disclosure protection tribunal, exclusively mandated to adjudicate any unresolved complaints of reprisal dealt with by the integrity commissioner, and to issue orders including damages for pain and suffering and disciplinary measures for those who are found to have taken or directed a reprisal action; and permit access to free legal advice to public servants, witnesses and others who are considering making a disclosure. Bill C-2 also protects the identity of public servants and witnesses who disclose information in an investigation; empowers the commissioner to report investigation findings, make recommendations when wrongdoing is established and report on these matters to Parliament within 60 days; and provides for significant sanctions for those who are found to have taken reprisal actions or who obstructed the investigation.
Notwithstanding Bill C-2's positive features, there are still some limitations that this committee may wish to consider. These limitations, however, are not fatal for the effectiveness of the legislation as currently drafted and should not stand in the way of its implementation. If, for whatever reason, they are not fixed at this stage, I hope they will be considered at the five-year review stage in light of experience up to that point. I will make five brief observations and I will be pleased to expand upon any of these matters and others in response to your questions.
The Chairman: Excuse me, Senator Joyal is listening in French and you are going a bit quickly for the translators. I am not going to cut you off but please slow down just a bit.
Mr. Keyserlingk: I apologize. First, the entire federal public sector should be covered. The members of the Canadian Forces, the employees of the Canadian Security and Intelligence Service, CSIS, and the Communications Security Establishment, CSE, should have access to the commissioner as an independent and impartial mechanism external to their organizations, where they may report allegations of wrongdoing or complaints of reprisal and have access to the public servants disclosure protection tribunal.
The second point concerns the definition of reprisal, which, as Justice Gomery stated in his report, should be as open-ended as possible. Currently, the PSDPA limits the definition to employment-related matters such as disciplinary measures or termination of employment. They measures are by no means exhaustive of all types of reprisal or retaliation that may adversely affect a public servant who has made a good faith disclosure to the commissioner.
[Translation]
The next topic is also related to the protection from reprisal. Although there is a prohibition against the taking of reprisal against private sector contractors and grant recipients, unlike public servants, they will not be allowed access to the Public Sector Integrity Commissioner to file a complaint of reprisal and receive remedial orders from the tribunal. In fairness, such protection should be provided to private sector contractors and grant recipients, if they are to make disclosure of wrongdoing.
Fourth, neither the PSDPA nor Bill C-2 permits the commissioner to conduct an investigation that reaches beyond the federal public sector. There may be cases where information in an organization or held by an individual outside the federal public sector can contribute to an investigation regarding alleged wrongdoing by a public servant.
[English]
A fifth point also merits consideration. At present, the PSDPA and Bill C-2 preclude the commissioner from accessing information contained in confidences of the Queen's Privy Council, cabinet documents and documents protected by the solicitor-client privilege. Ensuring accurate and conclusive findings and fair results in an investigation is at the core of the commissioner's mandate and requires having access to any evidence that could shed light on a matter of alleged wrongdoing.
Finally, I believe it is of the utmost importance that the identity of the persons making a disclosure of wrongdoing and witnesses involved in the investigation process should always remain confidential. Failure to adequately protect the identity of those persons may discourage them from making disclosures, or encourage them to disclose anonymously for fear of reprisal. Their identities should never be released through an access to information request or pursuant to any other legislation. Bill C-2 protects those identities from being released in response to access to information requests — in fact, it does that better than the disclosure bill — but Bill C-2 should also state clearly that no other acts of Parliament will allow their release.
However, with respect to other information, other than personal identity, I believe that information gathered during an investigation by the commissioner should be protected only while the investigation is conducted. At present, Bill C-2 provides for a blanket exemption from access to information requests with no time limit for all information gathered by the commissioner's office. In my view, this protection of information is excessive. It does not provide the commissioner with any discretion to decide for reasons of transparency or public interest, to disclose information to the public after an investigation is completed.
In conclusion, Bill C-2 does, nevertheless, provide for substantial and welcome amendments to the Public Servants Disclosure Protection Act. The resulting legislation will be a significant improvement over the policy approach that has been in the place for the past five years.
Canada will be exemplary in providing for a public sector integrity commissioner to investigate and resolve allegations of wrongdoing and protect, from reprisal, public servants who make those disclosures. I am confident that with the amendments of Bill C-2, the PSDPA will be still more worthy of confidence of public servants, for whom it was designed, and of the public.
The Chairman: You say you are precluded because of client-solicitor privilege from getting certain things. Have you ever met with officials of the Canadian Bar Association and if so, with what results, with respect to the issue of solicitor-client privilege?
Mr. Keyserlingk: We have not met with them.
The Chairman: You said at the beginning that you will be leaving this year as the Public Service Integrity Officer, and you referred to the definition of "reprisal" given by Justice Gomery. You commented that there may be some limitations even in Bill C-2. Based on your experience, I would like to have your views as to what items you would like to see in the definition of "reprisal."
Mr. Keyserlingk: Thank you for that question. I would recommend that the definition itself be completely open-ended.
The Chairman: That was Justice Gomery's recommendation.
Mr. Keyserlingk: That is it precisely, in order to cover the range of possibilities that may arise, because at the moment the focus is on employment-related activities. Clearly, we are concerned about other forms of reprisals such as ostracization, for instance, which is not collapsible into a labour-related issue, but is a reality. That is the experience of people who do disclose wrongdoing, or that is their claim. Psychological harassment is another possibility, which is covered, interestingly, in Quebec legislation. Another is not being given important work that they otherwise would have expected. It is not a contractual obligation that they be given it, but it simply becomes clear in their view that they are not being given any more and they claim, and sometimes with good reason, that it is linked to having disclosed wrongdoing. Reprisals' affecting their family is a very real factor. In some cases, where the public servants' involvement in a disclosure then has a negative response on the part of the department, affects that public servant's health, the relationship with family members and so forth. These are a little less tangible than strictly employment-related implications but are no less real for public servants, which is why my view is that the best possible definition would be essentially an open-ended definition: Any act or omission that adversely affects the public servant.
The Chairman: You are saying directly or indirectly.
Mr. Keyserlingk: Yes, that is correct, directly or indirectly. One could keep the other employment-related issues as well because they are relevant, obviously, but they would be covered as well in the more general definition. Then one could also take proposed amendment 42.1(1)(d), which says, "that any measure that adversely affects the employment or working conditions of the employee," and change it to read, any act or omission that adversely affects the public servant. It would not be a difficult amendment to make in terms of length or complications, but it would simply open the door to a wider definition of reprisal.
Now, it is interesting to note that the definition seemed to be more coherent in an earlier version of the legislation. In that earlier version, complaints of reprisal were taken to the labour boards, but it was changed and now, complaints go to the commissioner, or in the case that is not resolved by the commissioner, then to the tribunal. The intent of the change was to go well beyond the labour board perspective, and if that is the case, the definition ought to be equally widened to go beyond that context.
Senator Cowan: I wonder if it was because the original body was a labour relations board, which would restrict its activity more to employment matters. I gather you favour this new tribunal as an improvement over the existing one. We did have some evidence that the existing tribunal was well experienced in these matters and that there is no need for a new tribunal, but you believe there is.
Mr. Keyserlingk: Yes, and particularly because I think the forms of reprisals go beyond the labour context.
Senator Cowan: Now you are recommending that the definition of reprisal should be open-ended, as did Justice Gomery in his report.
Mr. Keyserlingk: That is right.
Senator Cowan: Were you or your office consulted in the preparation of this bill as it affects these matters that we are discussing?
Mr. Keyserlingk: Yes, in fact I made pretty much the same points to the House committee. They were not, in fact, taken up for the most part, which is why I am back again and still trying.
Senator Day: You say you were consulted on the preparation of the bill or you were consulted after the bill was proposed.
Mr. Keyserlingk: We were consulted while the bill was being considered or in progress. It was not so much that we were consulted as we simply took it upon ourselves to say, we think we have something useful to offer on the basis of our experience, so here are the amendments; here are the provisions we think ought to be in this bill. It was not a consultation; it was more our saying here is what we think you ought to be doing.
Senator Day: Did you appear before the House committee dealing with Bill C-2 when Bill C-2 was under consideration?
Mr. Keyserlingk: We did appear before the House committee after the bill, but we had already submitted a series of provisions that we thought ought to be in the bill.
Senator Day: Did you submit that to a House committee?
Mr. Keyserlingk: No, we submitted them to the Department of Justice.
Senator Day: That clarifies it.
Senator Cowan: You knew the government was proposing to bring forward legislation in these areas and you thought you had some useful comments which you reinforced before the House committee and now before us?
Mr. Keyserlingk: Yes, that is correct.
Senator Cowan: Could you expand on the point you made about extending the coverage of this bill and the sense that there may be people who would have legitimate complaints that are not protected under this proposed legislation?
Mr. Keyserlingk: I believe all public servants, in whatever context they work, ought to have access to a process outside their department, in order to be assured of an independent investigation. They do not always have to go outside the department, although they can do that according to Bill C-2 now, without any need to go internally first.
Obviously, it is good to deal with this, if possible, within the department. However, if they feel they do not want to do that, or have done that and are not satisfied or whatever reason, they ought to have access to an independent process. This is simply because there will be many occasions when they do not wish to go internally. They might not have the confidence in the person they have to go to, or they might be bringing a complaint or allegation against that person.
Some believe that this should not apply to the security establishment, for instance, because of its involvement with security issues and the possible compromise of security matters.
Mr. Keyserlingk: The proposal is that they develop their own mechanism, which is fine. Every department ought to have its own mechanism. Our interest is not so much issues where there might be security issues involved, because the issues people may want to bring to the commissioner are more likely about administrative failures of one sort or another; gross mismanagement. This situation is typically what happens in other departments.
Furthermore the commissioner would have full security clearance, should there be anything with a security aspect so it. I have top-secret clearance, presumably the commissioner would as well, and is therefore obliged to keep that kind of information confidential. The commissioner may not wish to be involved because the issue may have security implications, which might complicate the investigation.
There is no reason I can think of in principle why people in the security establishments or in the forces should not have available what every other person in the public sector will have available. It does not mean that this commissioner will not have to exercise discretion at various points about taking on a case, but if you exclude them in principle you are saying they have fewer rights, in effect. The result may be that they have less confidence about coming forward with good-faith disclosures of wrongdoing.
Senator Cowan: They could be included within the ambit of the act and then the commissioner, on a case-by-case basis, could exercise discretion.
Mr. Keyserlingk: That is already the case. It has been my experience as well that there may be reasons why the commissioner will not take on a case. It may not be credible, it may not fall under the commissioner's umbrella, or there may be a better way of dealing with it. All of those factors, which are listed as well in Bill C-2 are still relevant no matter who is under the umbrella of protection.
Senator Nolin: When you say the ambit of Bill C-2, does it mean that someone from any relevant sector of security can go to you and complain under Bill C-2?
Mr. Keyserlingk: No.
Senator Nolin: Who is excluded?
Mr. Keyserlingk: Excluded are, at present, the uniformed forces, not civilian, and the security establishments.
Senator Nolin: Including the RCMP?
Mr. Keyserlingk: No, the RCMP has access to the commissioner, which is interesting because in a way it is a precedent of my point about the establishments, that the RCMP is included by Bill C-2.
You could extend the same argument to exclude the RCMP that has been used to exclude the security establishment, but we have already accepted the RCMP and the RCMP is within the ambit of Bill C-2. The RCMP also deals with security issues and sensitive police issues, yet that role was not seen as an obstacle to including their access. That is the issue.
Senator Nolin: Thank you.
Senator Cowan: Tell us, from your experience, how extending protection to private-sector contractors and grant recipients would come into play, and what concerns lead you to that recommendation?
Mr. Keyserlingk: We, at the moment, do not have any experience with that because they are not now entitled to come to us.
Senator Cowan: I am trying to imagine in what circumstances your concern would arise.
Mr. Keyserlingk: The concern arises from the fact that we are asking or allowing those in the private sector to bring information forward about wrongdoing in the public sector, but we do not extend to them the same protection from reprisal that we extend to public servants. That is the rub of the concern.
There is a criminal offence in Bill C-2 that prohibits practising reprisal against those in the private sector who bring information forward, or anyone else that brings information forward and experiences reprisal.
That criminal offence, in my view, is unlikely to be used practically because it is a criminal offence requiring a high standard of proof, and it is a fairly specialized area, which I doubt the police will make a priority of. It is a good thing to have that offence, I am not questioning that, but I do not think it is an answer; therefore we do not need to give people in the private sector the same protection.
Consistent with the view that the private sector should not get that full protection, Bill C-2 speaks about the private sector as providing information, rather that making disclosures. The definition of reprisal requires you to be a public servant. There is a consistency in the act if one wants to exclude extending protection to those in the private sector.
The new sections referring to persons who are not public servants is on page 166 of Bill C-2, proposed amendments to sections 42(1) and 42(2) of the Public Servants Disclosure Protection Act. Those sections refer to access by individuals that are not public servants, and to the prohibition about practising reprisal against them.
Those are welcome additions, because I have argued for some time that we ought to take our information about possible wrongdoing in the public service from any reliable source. This goes to your question, senator — the only people who might know about an alleged wrongdoing by a public servant are people in the private sector who deal with that public servant or department. Typically the wrongdoing would be about contracts, grants and so forth, which are covered in those sections.
The problem is that they are not extended the same reprisal protection. We are saying we will take the information but we will not give you the same protection.
When we talk about providing information as those provisions do, it is obviously an attempt to suggest that somehow providing information is different than disclosing a wrongdoing. The reality is, it is the same activity, and one is exposed to essentially the same real or perceived risks. Therefore, if we do not offer them the same protection, in other words an investigation by the commissioner on that issue of reprisal, and secondly access to the tribunal — those two things that are not extended to people in the private sector — we are saying take all the risks and bring the information forward, but I am sorry we will not defend you in the same way or protect you in the same way.
Senator Cowan: Since the objective is to get at the heart of these acts of wrongdoing, you should not have two different classes or provide two different classes of protection to the informant depending on the category.
Mr. Keyserlingk: Exactly: the definition of reprisal should be expanded to include complaints by non-public servants or private citizens. These sections should say, in effect, that those people are not simply "providing information," but they are disclosing wrongdoing in the same way as the public servant.
An objection is that we are opening the floodgates to private citizens who will come forward any time they do not get a contract or a grant. I do not see that objection as credible because the commissioner will always have discretion, according to the act, to decide whether to go forward: the first test will be credibility. It is not stated that way, but it is an obvious test that any investigator will apply: Is it credible and is it something we can best handle as opposed to someone else? Sometimes there will be someone else who can handle it better. There may be other ways of dealing with contractual complaints. It could be that if it covers an alleged wrongdoing by a public servant, it maybe that the best person to deal with it would be the commissioner.
The Chairman: The commissioner may need an enlarged staff to deal with the floodgates.
Mr. Keyserlingk: If the floodgates materialize, there would be an increased staff. That is a prediction that is difficult to substantiate; however, it is a theoretical possibility. If it happens, there are obvious answers to it — apply more discretion. It is just as plausible that there will be relatively few such people coming forward. Do not forget that these people depend upon government largesse or response to a contractual or grant application, for their livelihood. They will not take risks that easily, and this is not a risk free situation. I do not think it is reasonable to expect floodgates to open.
Senator Cowan: You would allow the commissioner, then, to exercise his or her discretion. The evidence is that it is as likely to come from the private sector as in the public sector and, if the object is to get the most credible information possible, you should not make that distinction.
Mr. Keyserlingk: That is what I am proposing.
Senator Cowan: I would like to take you page 172 of Bill C-2 and proposed section 16.5 of the Public Servants Disclosure Protection Act that says, "The head of a government institution shall refuse to disclose any record requested under this act..." Your point is that, while the work of the commissioner ought to remain permanently held in confidence, there is no reason to extend this to the heads of government institutions. Justice Gomery said that five years, which was the provision in the existing legislation, was too long. For some reason, we are now removing that limitation entirely.
Can you comment on that and why there should be a distinction between the records created and obtained by the commissioner in the course of the investigation and those obtained by the head of a government institution?
Mr. Keyserlingk: We are talking about information requests other than those involving identity, because identity should be protected permanently. On that point, as I said before, it would be helpful and important that Bill C-2 actually state "no other act may override that exemption to access of personal information."
On this point, after the investigation is over, there ought to be discretion accorded to the commissioner to release that information as a response to a request for instance on transparency grounds or on public interest grounds, once it is complete. That would mean through all the stages of what comes after the report, possible challenges, and so on.
The issue here is to find the right balance between protection and confidentiality on the one hand and transparency on the other. No one pretends that the right balance is an easy thing to find. The balance falls too far over on the side of secrecy or confidentiality without a corresponding risk to any party. The public right to know is excessively restricted in this provision.
The commissioner, by the provisions of the bill, is allowed to make reports to Parliament. In fact, the commissioner is obliged to make reports to Parliament and does have some discretion as to what goes into that report. The commissioner must consult the institution, but if the commissioner decides that, despite the refusal to allow the information to get into the report, he or she will do it anyway because there is a public interest. That same discretion ought to be given to the commissioner about responding to access requests about non-identity information once the inquiry is finished.
Senator Cowan: That would be in a role of overriding public interest.
Mr. Keyserlingk: I am not saying that will be routinely handed out. However, there ought to be discretion to consider the access request. At the moment, I think it is excessively restricted.
Jean-Daniel Bélanger, Senior Counsel, Public Service Integrity Office: Mr. Keyserlingk is referring to annual reports or special reports that the commissioner will be able to table in Parliament. In section 49 of the PSDPA, the commissioner will have a mechanism whereby he can file a report that would contain some sensitive information and consult with the head of the institution. At the end of the day, for reasons of public interest, where the public interest outweighs the potential harm of disclosure, then the commissioner will be able to disclose the information. Comparing that to the mechanism under the access to information request, we do not see why there would not be similar discretion for the commissioner.
Senator Cowan: You have made a number of recommendations today. Do you have suggested amendments to improve this proposed legislation? If so, could you provide those suggestions to the committee?
Mr. Keyserlingk: We have some but we can certainly work on some others. For instance, there is the definition of "reprisal." We have what we consider to be an acceptable general definition, but on some of these other matters we could certainly do some work on a specific provision, if you like.
Senator Milne: Mr. Keyserlingk, I wish to refer to your sixth recommendation concerning keeping the identity of the person confidential. Do you have any wording that would prevent other acts from disclosing the names of witnesses who had made disclosures?
I think that would be helpful for us. When I look at this bill, I get very confused because it goes all over the place.
Mr. Bélanger: We will look into wording similar to a notwithstanding clause — that is, notwithstanding another act of Parliament, the identity of the discloser, the whistle-blower, should be protected.
Senator Milne: On page 172, proposed amendment 16.5 to the Access to Information Act states:
The head of a government institution shall refuse to disclose any record requested under this Act that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.
That will keep much of this information secret forever. Perhaps you would recommend changing the word "shall" to "may," making it discretionary.
Mr. Keyserlingk: Yes; that would be an excellent way of doing it.
I only want to add that you are right about us having a concern, and I believe it is shared with you. As long as other acts are allowed to override this one about providing identity information, it will be a form of discouragement to public servants who may be considering making a disclosure. Public servants may wonder if another act might not protect because their identity even though the commission is bound to under this proposed legislation. Some acts could do that, in fact.
It weakens the appeal of the act and the commissioner's office, which is to say that information will be taken so seriously that no other act can override it.
Senator Milne: You said the RCMP is included under your act, but CSIS is not. I wonder if you have any information as to whether the members of the Armed Forces or security institutions in other countries are protected under whistle-blowing legislation. Do they have access to these kinds of services? Do you know anything about other countries?
Mr. Keyserlingk: That is a good question. We looked at that some time ago, and in most cases I believe other countries do not have access to an outside independent person like the commissioner.
However, we have always said we would like our act to be the best possible act. In some respects we have learned things from other countries and statutes, but in other respects we think they are not sufficiently advanced or open in some aspects.
Senator Milne: I am particularly thinking of the CIA or MI-6 in the U.K. Is security an issue?
Mr. Keyserlingk: Yes: It is a widespread position that security issues trump other concerns. Increasingly, that is the case in our time, but not for bad reasons. We do not think that argument ought to make this kind of access unavailable. Security certainly imposes a greater obligation on the commissioner to exercise caution, protect security information and so forth. That is precisely one of the current obligations of the commissioner in such a position. It is a current obligation that I have as well. I think that is where the emphasis in terms of protection of security information should lie: on the exercise of discretion and the protection of the information but not in the denial of access. That is a different issue, in my view.
Mr. Bélanger: The definition of wrongdoing covers abuse of public funds. We are saying that if you are in the army or at CSIS and, as an employee, witness an abuse of public funds, you will report that. It has nothing to do with...
Senator Milne: Of course, that never happens in the Army.
Mr. Bélanger: No, it never happens.
Senator Milne: Do you have a copy of the bill? Clause 224 of the bill on page 174, which amends the Privacy Act — can you explain to the committee and perhaps to the public as well what protection this clause offers to Canadians? It seems to me that clause removes the right of access for an individual trying to find out what information the government holds about them personally.
Mr. Bélanger: That provision applies in the course of an investigation by the commissioner. Presumably, when there is a disclosure of wrongdoing, the commissioner conducts an investigation. Any personal information collected by the commissioner during that process is exempted forever from being released.
Senator Milne: Forever?
Mr. Bélanger: Yes: Therefore, it protects all personal information. We are saying that it should forever protect the identity of people around the disclosure of wrongdoing.
That provision was changed in the current PSDPA, where discretion was given to the commissioner. In effect, it protects the personal information of members of the public as well as public servants from being released.
Senator Milne: I have no problem with protecting members of the public from the release of their personal information, but should members of the public service sector also be included under that category forever?
Mr. Bélanger: I am not sure I follow your question. It does protect personal information. As a public servant, it is okay if I request my personal information from the commissioner. In that case, I will get it. However, if someone else requests the same information about me, it will be protected forever.
Senator Milne: Therefore, the meaning of that section is not to prevent the person from finding out their own information?
Mr. Bélanger: No, it is not. It is meant to protect personal information from others.
Senator Milne: It has been 10 months since Bill C-11 has been passed, and I understand it is not in force. It has never been proclaimed.
Mr. Keyserlingk: That is right.
Senator Milne: Therefore, you are still operating under the previous legislation?
Mr. Keyserlingk: We are still operating under the Treasury Board policy, not legislation. There have been various previous attempts to legislate, but they have not succeeded. Therefore, we are still operating on the basis of the Treasury Board disclosure policy.
Senator Milne: There is still no legislation?
Mr. Keyserlingk: There is still no legislation.
Senator Milne: It has been five years?
Mr. Keyserlingk: It has been four years, to be exact.
Senator Stratton: What were they doing?
Senator Milne: I do not know. It seems to me that Mr. Gomery recommended several amendments to Bill C-11, but none of those proposed amendments are in this bill.
Mr. Keyserlingk: I believe that is correct.
Mr. Bélanger: Yes.
Senator Joyal: I welcome our guests. Can you explain to us how effectively the identity of somebody using the system is protected under the bill? In other words, I am concerned that the protection of identity is linked to reprisals. Normally, if the system works well, the chance for reprisals is minimal. In my opinion, they are two parts to the same equation.
If we put into place a system that prevents or represses reprisals through a tribunal of some sort, it would be as the result of two things occurring: Either the system has not been well conceived to protect the identity, or the civil servant came forward publicly.
Mr. Keyserlingk: One issue here is that there may be times during an investigation when the alleged wrongdoer must be informed about the identity of the whistle-blower on the grounds of natural justice, in order to mount a defence. Sometimes, the identity of the whistle-blower will be relevant in order for a person to know how to respond. That is not necessarily the case but it could arise, and in some cases, the whistle-blower would have to be informed.
That is one way that the identity could become known, but it would not be known beyond the circle that it has to be known in order to mount a defence. It should not be something widely disseminated until a finding of wrongdoing is found.
Senator Joyal: Would it be during the investigation?
Mr. Keyserlingk: Yes. The other way is what you suggested, which is that sometimes the whistle-blower will be known in his or her department to be whistle-blowing because it is about an issue that has involved a lot of public dispute within the department. In some cases the identity is known in the department and reprisals could arise from that, because it could be a labour-related issue or it could be one of the broader issues I have talked about, but for whatever reason the person may have pursued internal processes to deal with it, in which case he or she would be known.
Mr. Bélanger: We had cases where the employees raised their concerns with their supervisors, and then came to us. At that point in time the supervisors knew who was complaining so it is a situation where there could be reprisals taken against the employee who spoke up. In a perfect world, if an employee could come to us with a guarantee of anonymity then we would be able to go back to the department, or the Crown corporation, and say that we have the allegations, we will investigate, and you do not need to know where the allegations originated. In a perfect world we would be able to report on the wrongdoing.
Senator Joyal: If I understand, there may be cases where, for due process you feel compelled to disclose the identity to the person or to the department?
Mr. Keyserlingk: Yes.
Senator Joyal: Have you defined a procedure for this? How is it adjudicated?
Mr. Bélanger: It is the criteria of natural justice. We will have to apply natural justice. When the allegation is directed to a person, the person will have the right to know who brought the allegation forward. This has to be revealed for the accused to be able to mount a defence. We will develop an investigative procedure but the investigative procedures will have to take into account the rules of natural justice on a case-by-case basis.
Senator Joyal: Have you not developed those rules at this stage?
Mr. Bélanger: The rules of natural justice are known and established.
Senator Joyal: Have you developed a procedure of adjudication on that basis? Let us take an example: Suppose a person wants to know the identity of the whistle-blower to prepare his or her defence. Suppose you refuse, you feel that you should not disclose the whistle-blower's name. Is the department then allowed to go to the Federal Court and seek a decision of the court to compel you to disclose the name?
Mr. Keyserlingk: Yes.
[Translation]
Senator Joyal: So the process itself is judicable.
[English]
Mr. Keyserlingk: That is a good point and in fact is equally the case at various other points in the process, that all the various stages where a decision is made that implicates the parties, one or another or both, can be challenged in the court. Certainly that is a factor that is implicated in legislation as opposed to the slightly less formal procedure we use, because it is more of an administrative investigation. In our view it is worth having those additional complications and opportunities to challenge precisely because of the importance of due process and the rights of all the parties.
We could also add, senator, one reason why we have not actually had to tell anyone yet about the identity of the whistle-blower is because most of the cases we have had have been what we call private interest cases as opposed to public interest cases. We think that my office and especially the new commissioner, should primarily be used and focused on what we call public interest issues, not so much personal employment related issues. We feel that we should focus on issues where a person comes forward as a witness and says I am witness to a wrongdoing in which I am not a victim but I do not think it should have happened in the name of the honesty of the public service. The witness comes forward to report on a wrongdoing in the transparency of the public service.
In that situation there is less likelihood that the identity will be known, and of course should be protected from access, but it may even there become an issue as to whether the alleged wrongdoer should know that identity. The issue would typically be whether it is necessary to mount an effective defence.
[Translation]
Senator Nolin: I would like to explore that process. When you receive a complaint, you are at the stage where you are assessing the credibility of the complaint; that is not the point at which you disclose the identity of the whistle-blower. You only disclose the identity of the whistle-blower once you have determined whether the complaint is valid or not. I am trying to draw a parallel to the criminal law: when the police conduct an investigation, no principle of natural justice forces them to disclose the name of the complainants, and they can continue investigating as long as they like. It is only once charges have been laid that there is disclosure of the evidence. Is that the parallel you are trying to draw here?
Mr. Keyserlingk: Yes, exactly, because we do not want to create needless problems for an accused.
Senator Nolin: Or the reverse — in other words, if the whistle-blower makes a complaint that you deem to be unfounded.
[English]
Mr. Keyserlingk: Yes, that is it. One of the first criteria is exactly as you say — the credibility. The act does not speak about credibility but it speaks about seriousness. We include the dimensions of the activity in question, how serious was the activity alleged and how credible is the allegation. We ask is it likely that it happened according to the story of the whistle-blower? Is it likely one can get evidence of this as opposed to something that looks like it will be entirely hearsay or whatever. Sometimes you do not know that until you start reviewing, of course.
Clearly the identity of the alleged wrongdoer is not implicated as to whether you need to reveal the identity of the whistle-blower, until you come to a stage where that becomes a relevant issue.
[Translation]
Senator Nolin: At some point, you feel it is your duty to ensure the future accused has full answer and defence.
[English]
Mr. Keyserlingk: Yes. You understand that this does not go to the issue of access to information about the identity, access by another party. That remains in our view something that ought to be protected and protected absolutely. We are talking about the investigative process. That is a different story and where it might arise. As I said, it has not arisen for us yet, but if the kinds of cases that increasingly come forward to the commissioner are public interest cases, then it might, more typically, because there will be less likelihood that the identity of this person is already known.
The Chairman: Dr. Keyserlingk, I want to remind you that the next witnesses will be from the Public Service Commission of Canada, and they are due in not so long. Our time for this session has 17 minutes to go.
Seven senators have not yet had an opportunity to ask a question. Could you please make your responses briefer, because I want all honourable senators to have an opportunity to put their questions to you. Two senators want to be heard on the second round as well, so that is nine more questioners in about 17 minutes. I am prepared to extend this session by ten minutes to make sure everyone has an opportunity, but I wanted to tell you what time restraints we have.
Senator Joyal: Do I understand that the principle is confidentiality unless, in the course of the investigation, according to your interpretation of the obligation under the principle of natural justice, you feel that you are compelled to disclose the identity?
Mr. Keyserlingk: Yes.
Senator Joyal: My second question is in relation to an issue raised by the Canadian Bar Association in their brief in the other place. Do I understand that you are not aware of the points that were raised in the bar recommendation?
Mr. Bélanger: No.
Senator Joyal: Maybe I should raise these points to put them on the record and you can answer later to the clerk of the committee.
The Canadian Bar Association contends that on the basis of the 2001 decision in Haydon v. Canada, the definition of "protected disclosure" should be amended. The English copy that I have is faded, so I will read it in French.
[Translation]
Senator Joyal: Mr. Bélanger, do you have the definition of "protected disclosure" in front of you?
Mr. Bélanger: Yes.
Senator Joyal: Well, "protected disclosure" means:
A disclosure that is made in good faith and that is made by a public servant:
(a) in accordance with this act;
(b) in the course of a parliamentary proceeding;
(c) in the course of a procedure established under any other act of Parliament, or
(d) when lawfully required to do so.
The Bar Association has focused on paragraph (d), which states "when lawfully required to do so." The Bar Association's reasoning is as follows: The decision in Haydon v. Canada states that under the common law, a public servant normally owes loyalty to his employer, except where that duty of loyalty is subject to exemptions based on the public interest. The definition in paragraph (d), which states "when lawfully required to do so" is too restrictive. It should read "when lawfully allowed or required to do so."
In other words, a public servant should have a broader ability to make a disclosure with respect to embezzlement. I refer you to pages 10 and following of the Bar Association's brief. You may want to give some thought to their recommendation. The Bar is recommending that sub-paragraph (d) be amended to simply state "when lawfully allowed or required to do so." If it is an obligation only, there could be cases where a public servant might believe he is required to make a disclosure, even though in actual practice, it is not a formal obligation under the legislation. In my opinion, there is a difference between the two. I would like you to give this some thought and let me know what your views are in this regard.
Mr. Bélanger: At first glance, this proposal strikes me as being appropriate, fair and reasonable for the purposes of broadening the scope of a "protected disclosure."
[English]
Senator Joyal: I understand that you will provide a formal opinion on this case to our clerk.
My last question is in regard to your concern at page 3 of your brief about the definition of "reprisal." I am tempted, on the basis of my own judgment and experience, to accept your recommendation that when one defines "reprisal" in the limited context of disciplinary measure or termination of employment, in fact one does not deal with the real day-to-day operation of a department. If the statute clearly states that disciplinary action or termination of employment is forbidden, of course a manager will not take such action; the manager will do something different, and the something different is "rendre la vie impossible."
In another committee of this place, we have had an issue that has come to court — and there have been many Federal Court decisions in the case I am thinking about — whereby the first allegations were in the context of professional activity that was totally unbearable after a certain time. If we do not extend the definition of "reprisal" to take in that situation, we are stating: Do not do it directly, but you are allowed to do it indirectly. This situation does not meet the objective of the legislation, and I think that Justice Gomery was correct in requesting us to act on this.
Mr. Keyserlingk: That is an excellent point, senator.
Senator Joyal: Maybe you want to reconsider this. It is an important issue. The practice of public service, normally, is in the context of what I just described to you.
Mr. Keyserlingk: That is an excellent point.
The Chairman: You mentioned this already in response to my question at the beginning.
Senator Andreychuk: I have heard your message, so I will restrict my questions.
If I take your testimony as a whole, you say that the act is going in the right direction, but you want other elements to be included in it. Is this an area where caution is wise, particularly when we move out of the sphere of actions that have been traditionally public service issues and into the private sector? Are you advocating that this cautious approach is the correct one? If I understand you, you are signalling some other areas that you hope the government will look at and will build into a future evolution of this act.
Mr. Keyserlingk: Caution is always a good principle in developing new legislation. As I am sure you are aware, the issue is always how to balance caution with, for instance, what could be argued to be a clear denial of a right, in this case, right of access. Some recommendations I have made concern right of access to information or right of access of those in the private sector to full protection from reprisal.
Have I been incautious? I suppose I probably made some kind of unconscious calculation that it would not be excessively cautious to extend the access to the inquiry process and the protection of reprisal process to those in the private sector. I made that calculation on the grounds that, A, I think they have that right; and B, in order to achieve a comprehensive and fair investigation and finding, unless you weigh the information that could perhaps in some cases come only from outside the public sector, you will end up with one of two things. Those two things are, either an inconclusive finding or an unfair finding, because we might find the public servant unfairly responsible, whereas the responsibility may have to be shared with someone outside the public sector.
I agree with you entirely, except that I think in these cases these proposals are not incautious but, rather, based on the idea that if we want a system that is fair and comprehensive, some things would be best changed.
Senator Andreychuk: Extending matters to the private sector seems slightly different from affording protections and opportunities for a public servant. If a public servant discloses information and is ostracized, or any of the other things you talked about, psychological or otherwise, their livelihood, first and foremost, is obviously in question. In the private sector their livelihood might be in question, but in most cases it probably will not be, because their entry into the government would have been one act, in most cases. Therefore, the risk is greater to a public servant than to someone in the private sector.
Mr. Keyserlingk: That is probably generally correct. However, one thing we must be aware of is that the reason the prohibition of reprisal extends to the employer in the private sector is precisely because of the possibility that a private sector employee who has made a disclosure could be the victim of reprisal by his or her own employer. In other words, we would rather not destroy our opportunities for further contracts or grants, and you have put us at risk for that, at which point the protection would kick in of the private sector employee. Therefore, in some cases employment in the private sector could be at issue.
Senator Andreychuk: I can envision that, but are you saying that this act and this process is the only way of getting at that, or would we look at other pieces of legislation, even criminal legislation, to get at that?
Mr. Keyserlingk: We have a criminal prohibition against that reprisal in the act now. I think it is a good thing to have that, but I am not so sure that would be as direct and effective for dealing with the problem in most cases as would access to the investigation by the commissioner and protection from reprisal. That access and protection involves an investigation by a commissioner established for that purpose with the tools to do the job, focused entirely on whistle-blowing and protection from reprisal, whereas the police are not trained for that type of investigation and would not, in my view, consider it a high priority given their limited resources.
Senator Andreychuk: It is a choice of mechanisms?
Mr. Keyserlingk: Yes.
Senator Andreychuk: That is what we are arguing; there should be something. The question is, which ones to put in place now and which ones to monitor.
Mr. Keyserlingk: Yes.
Senator Andreychuk: You want it extended to CSIS. With regard to your point on expertise, much of the work of CSIS is based on opinion and second-hand evidence. Resources are used differently there and for different purposes than in other agencies and departments.
It seems to me that a commission would need unbelievable skills to understand and not jeopardize our national security. At the moment, we have the mechanism of citizens' oversight of CSIS that probably could deal with these issues better than the commissioner.
Would you care to comment on that?
Mr. Keyserlingk: That is a good point. However, I think that the oversight committees, including the one that applies to the communications establishment, are typically not focused on wrongdoing of the kinds that the commissioner would focus on, which are gross mismanagement, misuse of funds and so forth. As you suggest, it is a question of how you divide the available resources.
The commissioner might be in a better position to deal with some of those issues, again because that kind of wrongdoing will be what the commissioner routinely investigates, so expertise will be there. Probably, it will be somewhat unusual, because these issues typically may not be complained of to other oversight bodies that typically accept complaints from citizens about what was done to them, for instance, and it may have nothing to do with these matters. However, it is clearly an issue.
Senator Day: Thank you for being here, gentlemen and helping us through this part of Bill C-2.
I want to ask you first about clause 201, the proposed amendment to section 19.1 of the Public Servants Disclosure Protection Act on page 140 of Bill C-2. There is an override in proposed subsection 19.1(3), but in subsection 19.1(2), there is a 60-day limitation period, which seems to me to be extremely short, especially when we consider other limitation periods we have seen in other places in this act.
Subsection 19.1(3) says, "if the Commissioner feels it is appropriate considering the circumstances of the complaint." Notwithstanding that, there is a limitation period of 60 days.
Mr. Bélanger: In the PSDPA, there used to be a 30-day time limit to file a complaint with the labour board. At least now it is extended to 60 days, which allows the public servant some time to consider their options. When a complaint of reprisal is filed with the commissioner, all other recourses of public servants are put on hold.
Senator Day: What is the best time period? How much time does a person need to consider their options? When you think reprisal is happening, you want to talk to your union representative and to your lawyer about other avenues. Is 60 days reasonable? If it is reasonable, that is great. If it is not, let us talk about putting the right time period in there.
Mr. Bélanger: Of course, the override in section 19.1(3) allows the commissioner discretion. It may happen that six months or a year later an employee will find out that everything that has happened to the employee was because the commissioner is investigating the employee's disclosure of wrongdoing. The employee may not have made that link before. There is, in effect, no time limit, or at least the commissioner has the discretion to decide on a case-by-case basis.
Senator Day: Mr. Keyserlingk, have you any comment on that?
Mr. Keyserlingk: I think that subsection 19.1(3) is there for that purpose; namely, if 60 days is not sufficient, for whatever reason, the commissioner is entitled to extend it. I believe that leaving it without a specific time period might be the strongest protection for so-called late filings.
Senator Day: Giving the override without any time limit?
Mr. Keyserlingk: Yes.
Senator Day: It seemed particularly short to me, but that is fine. We will leave that. I appreciate your comments.
What are your thoughts with respect to the ability of the tribunal to award $10,000 for pain and suffering? Are you advocating that?
Mr. Bélanger: The Human Rights Tribunal may award a similar or greater amount for pain and suffering, so it is in the ballpark, but it could be improved.
Senator Day: I am worried about putting specific amounts in legislation. Legislation takes a while to amend, once proclaimed.
That leads to my next question which concerns judges. There is a requirement that the tribunal must be composed of judges. What are your thoughts regarding defining the qualifications? Is there a reason why they must be judges? Proposed section 21(1) of the Public Servants Disclosure Protection Act sets out that:
Proceedings before the tribunal are to be conducted as informally and expeditiously as requirements of natural justice and the rules of procedure allow.
Judges are being put in there to do this expeditiously and informally.
Mr. Keyserlingk: Far be it from me to want to criticize judges.
Senator Day: I was not criticizing judges.
Mr. Keyserlingk: I understand. It seems to me that the inclusion of judges is a way of saying to those who feel that there ought to be access to the courts that there is access to a tribunal made up of judges. It is not the same thing as an application to a civil court, as some would like; however, I think it underlines the seriousness of the tribunal and it is a way of underlining it. Clearly, it is not the only way, but it is a way of doing it. It is a way of indicating that the finality this tribunal can bring in most cases is justified because experienced judges will be assigned for that purpose. I do not think that hurts the credibility of the tribunal process.
Senator Day: Will these be serving judges who will be doing extra duty?
Mr. Keyserlingk: I think so.
Senator Day: These are serving judges with the approval of the Chief Justice.
Mr. Keyserlingk: They will have experience in calling witnesses and weighing testimony and so forth. A fairly judicial process, even though informal to some degree, is not a bad idea for credibility of the outcome.
Senator Day: We have had some concerns in the proposed legislation where there are very specific qualifications. In our view that would exclude certain well-qualified people. On a tribunal of three there could be a university professor, for example, and a retired public servant who really knows how things work within the civil service and who could sit on that tribunal and provide good insight. Those people are excluded from this proposal. These will all be serving judges.
Mr. Keyserlingk: Of course, they can get testimony from those people, and in many cases they might have to do that. You are right, that perspective is important.
Senator Day: Let me go to the point raised by Senator Milne with Mr. Bélanger about the Access to Information Act and the Privacy Act. I am not sure that we got to the essence of that question. Section 12(1) of the Privacy Act is intended to help an individual go to a government department ask for the information that the department has on him or her in order to rectify and clarify the information.
It seems to me that section 22.2 precludes that. It states:
The Public Service Integrity Commissioner shall refuse to disclose any personal information requested under subsection 12(1) —
That is a section of the Privacy Act.
I understand the importance of keeping the name of who might have complained away. You do not want this to be a witch hunt in reverse.
Surely, that request for access to personal information under section 12(1) of the Privacy Act was intended to help individuals rectify the record. Is there not something we can do about this to protect that concept, which is a good one, of the Privacy Act?
Mr. Bélanger: Personal information is a broad term. We were looking at the identity of the whistle-blower and how to his or her identity.
Senator Day: I agree that is important.
Mr. Bélanger: In the PSDPA, there is a provision that allows the commissioner to protect the personal information. Section 58 of the PSDPA deals with information that could lead to the disclosure of the identity of the public servant; it deals with the identity of the individual.
What the government is doing in Bill C-2 is broadening that protection and making it a blanket exemption for any personal information. Our point is that if you broaden it and make it a blanket exemption, it should cover the identity of the individual, and not necessarily other personal information. We want that to be protected. If someone wants to correct his or her information in the record, that should be permitted. No one else should be able to get to the identity of the whistle-blower.
Senator Day: I agree wholeheartedly with your objective of protecting the identity. My concern is the proposed section at page 172, which seems to preclude an individual from correcting his own record. I think that is Senator Milne's point. Would you agree that that section could be looked at?
Mr. Keyserlingk: It is a concern we had not picked up, but it is valid. It should be clarified not to do what your fear is. Maybe there is an explanation for why the fear is not justified, but it looks at first sight like it could be.
Senator Day: At first sight, it looks to be inconsistent with the Privacy Act provisions.
Senator Cowan: I think Senator Andreychuk was hoping you might agree that the concerns that you have raised could, out of an abundance of caution, be saved for another day. I took your testimony to be rather the other way. You felt that there was no need, in the interests of caution, to avoid the suggestions that you are making now and that these could usefully be incorporated into this legislation by way of amendment, without being incautious.
Mr. Keyserlingk: You are correct. I also said in my opening remarks that if they are not attended to now, I think they are important ones to keep an eye on as the commissioner's role evolves over the five-year period, at which point there is provision to do a review. I would argue, as you suggest, that I would hope things would be attended to at this point.
The Chairman: Mr. Keyserlingk, earlier this morning you said:
These limitations, however, are not fatal for the effectiveness of the legislation as currently drafted and should not stand in the way of its implementation.
Mr. Keyserlingk: Yes.
Senator Day: You also told us that you would like to see this bill be the best possible.
Mr. Keyserlingk: Ideally, yes.
Senator Cowan: I have my answer, thank you.
Senator Cowan: The purpose is to get the information. We are not so concerned about the source.
My last point is to determine whether the commissioner should have the power to enforce a settlement that has been concluded, but that power does not exist in Bill C-2. As I understand it, the commissioner can report but has no power to enforce. Do you have a view on whether a commissioner should have a power to enforce a decision or a settlement? I would love to see the commissioner have that power. However, I understand the difficulty with that. There are good reasons why the body that investigates should not be the body that makes the final order as to how this will be disposed of. That is basic legal procedure. I used to argue that the commissioner should be able to make a finding and a ruling. I am not totally unhappy with the fact that another level will make the actual order. It makes some sense in terms of procedure and the way in which things ought to function.
It would be tidier and quicker if the commissioner could enforce but there is a case for saying another level ought to enforce because the commissioner investigates and makes the finding.
Senator Milne: We all seem to be working along the same line of questioning. Currently, under Treasury Board policy a public servant can go to the Public Sector Integrity Officer with respect to alleged reprisals against public servants. Bill C-11, as passed by the House of Commons, would have created the position of a public sector integrity commissioner as an officer of Parliament, to whom a public servant could go for such action. Bill C-2 changes that in a way because it seems to say that the public sector integrity commissioner would have the legislative authority to deal with complaints but if there were no settlement, the commissioner "may decide" to refer the matter to the new public servants disclosure protection tribunal. Under Bill C-2, the commissioner seems to have the discretion to refer the matter to the tribunal. Does this discretion not risk leaving a public servant in limbo if the commissioner were to decide against the referral? What would happen in such a case? Could the public servant leap over the office of the commissioner and go to the disclosure protection tribunal or would public servants be precluded from doing that?
Mr. Bélanger: The mechanism provided in Bill C-2 for reprisal protection is such that the public servant would file a complaint with the commissioner and the commissioner would decide whether to take it to the tribunal. Effectively, the public servant would be precluded from going to the tribunal and would go instead to the commissioner who would make application to the tribunal when appropriate. That mechanism provides protection from reprisal.
Senator Milne: Because everything is secret: the public servant might not be able to find out why the commissioner refused —
Mr. Bélanger: No: The decision of the commissioner would be disclosed to the public servant with an explanation for not referring the matter to the tribunal. The public servant then has the right to take the commissioner to Federal Court should the public servant find the explanation unsatisfactory.
Senator Milne: They would have to go before the Federal Court for a judicial review.
Mr. Bélanger: That is correct.
Senator Joyal: You said that the jurisdiction of the commissioner covers most of the federal public sector. Does that jurisdiction include employees of the Parliament of Canada?
[Translation]
Pierre Martel, Executive Director, Public Service Integrity Office: No, this does not include employees of the Library of Parliament, the Senate or the House of Commons.
Senator Joyal: And how are they protected if they want to serve the aims of this legislation?
Mr. Martel: At the present time, they are not protected under the legislation and will not be unless it is amended. The only possible protection for such employees is through internal administrative mechanisms that the House of Commons, the Senate or the Library of Parliament may see fit to introduce.
[English]
Senator Stratton: Mr. Keyserlingk, I was scolded last week for not jumping in with rebuttals but we thought it would be more appropriate to have the officials appear again before the committee to rebut positions put forward today. That approach would serve to clarify why the government side did not do certain things last week.
I refer to Bill C-2 as being similar to the Anti-terrorism Act, which was passed a couple of years ago and is currently in the review process. In essence, Bill C-2 should be passed without delay and then monitored over the next five years. I am not trying to put words in your mouth, Mr. Keyserlingk, but you would agree that if we were to pass this bill without amendments, we would monitor it over five years and review it just as we review the Anti-terrorism Act. We are not sure whether the fears expressed about the bill are real. Some fears could be real and some not so real. Would you agree with that?
Mr. Keyserlingk: Yes, I agree with that comment. If, for whatever reason, amendments become impossible or put the coming into force of the PSDPA at risk, then I hope that the bill passes in its current form. There is a strong sentiment within the public service that we need an effective act. Once again, if there is any risk of it not being passed, there would be an enormous amount of disappointment that could result in increased cynicism, et cetera. My answer is, yes.
The Chairman: Thank you, Mr. Keyserlingk, Mr. Martel and Mr. Bélanger for appearing today on this important section on whistle-blowing.
I am now pleased to welcome Ms. Maria Barrados, the President of the Public Service Commission of Canada. The PSC is an independent agency responsible for safeguarding the values of a professional public service, which include competence, non-partisanship and representativeness.
Ms. Barrados was confirmed as President of the Public Service Commission of Canada effective May 21, 2004. She has served as interim president since November 2003. From December 1993 to that date, she was assistant Auditor General, audit operations, at the Office of the Auditor General of Canada. Ms. Barrados has a solid background in audit, evaluation and statistical analysis and is also active in her community.
Ms. Barrados is joined by Mr. Peter Edwards, the Director of Strategic Policy at the commission, and Mr. Gaston Arseneault, the General Counsel.
[Translation]
I know that the Public Service Commission has closely followed the work of this committee and I want to thank you for being here today. I will turn it over to you now for your opening comments, following which we will open it up for questions and discussion which committee members will no doubt find extremely valuable.
[English]
I welcome you to the committee, Ms. Barrados. We would like to have your presentation and, following that, honourable senators will have a few questions.
Maria Barrados, President, Public Service Commission of Canada: Thank you very much, Mr. Chairman.
[Translation]
The Public Service Commission, or PSC, is a key element of the accountability systems in the public service. We have been entrusted by Parliament to protect merit and non-partisanship in the management of human resources, independent of ministerial direction. We do this through operating a delegated staffing system with effective accountability and being a centre of expertise for staffing and assessment.
The new Public Service Employment Act, known as the PSEA, which came into force on December 31, reconfirms our accountability to Parliament.
The Act charges us to independently safeguard merit and non-partisanship. We are committed to fostering a competent, professional and representative public service that is appointed on merit and is free from political influence and personal favouritism. Our independent monitoring agency has been serving the people of Canada and the government for decades now.
Today I would like to propose, for your consideration, amendments to Bill C-2 which would bring features of Bill C-2 into the PSEA.
First of all, these amendments will strengthen the oversight role that PSC exercises in support of Parliament. Second, they address elements of the act that may have the effect of threatening the fundamental values of merit and non-partisanship. Many of these suggestions were taken up by members of the House of Commons Legislative Committee reviewing the Bill. However, decisions with respect to the proper interpretation of House committee rules prevented further consideration of some of these suggestions. The PSEA is being amended in Bill C-2 and the changes I am proposing complement the intent of this Bill.
[English]
Bill C-2 opens up the Public Service Employment Act, thus providing the opportunity to clarify the mechanism for the president to transmit his or her special reports to Parliament. The PSEA provides for a minister to table the Public Service Commission's annual report. Amendments to the PSEA in 2003 added a clause enabling the PSC to make special reports to Parliament, however, how they were to be transmitted was not specified. I had assumed that we could table with the Speakers. In the absence of specific wording in the act we were advised that this was not possible and that our special reports must be transmitted through the minister designated for the purposes of our annual report, currently the minister of Canadian Heritage.
This requirement is inconsistent with the principle of strengthening the PSC's link to Parliament and providing independent, timely advice. The PSEA envisions that these reports be timely and that they should go directly from the PSC to Parliament without potential delays caused by administrative or other considerations. Modelling the tabling mechanism on the Information Commissioner, I am recommending that Bill C-2 amend the PSEA to provide the PSC with the ability to transmit its special reports directly to Speakers of both Houses for tabling.
Bill C-2 proposes to standardize the method of appointment for positions supporting Parliament. To align the existing process for appointment of the president of the PSC with this, I recommend that Bill C-2 amend the PSEA to ensure that the appointment of the PSC president be subject to consultation with the leaders of all recognized parties in the Senate and the House of Commons.
The heads of a number of organizations supporting Parliament and conducting investigations and audits will be required under clause 144 of Bill C-2, to refuse to disclose, under the Access to Information Act, records obtained or created in the course of investigations, examinations or audits. Protections are also provided for internal audit. Our audit reports tabled in Parliament do not clearly fall under either provision. In my view, final audit and investigative reports should be publicly accessible. The PSC and those being audited or investigated need to be assured that only substantiated findings appropriately explained are released. Since the Public Service Commission of Canada is mandated by the PSEA to conduct investigations and audits, I recommend that clause 144 of Bill C-2 be amended to provide protection of our draft audit and investigations records.
On a similar issue, individuals working for other organizations that carry out audits and investigations, which are reported to Parliament, are already designated or will be designated through clauses 2 and 305, as not competent or compellable witnesses and as immune from criminal and civil proceedings for actions taken in good faith while performing their duties. The PSC also conducts investigations and audits, the results of which we table in Parliament. Such reports involve personal and often contentious issues which could give rise to subsequent legal action. In order for us to do our work and protect our auditors and investigators, I recommend that Bill C-2 amend the PSEA to provide the same protection for PSC auditors and investigators.
I would now like to turn to two elements of Bill C-2 that may have the consequence of weakening what Parliament had asked us to do to protect, on its behalf, the values of merit and non-partisanship in the public service.
Clause 106 formalizes what has been traditional practice for the appointment of a deputy minister or special adviser to a ministerial position by giving the GIC authority to make appointments to these positions without reference to the PSC, thereby excluding the appointments from the application of merit. This clause, however, could apply to a number of positions not traditionally covered by the practice through the inclusion of special advisers to a deputy minister or a deputy head. In fact, the majority of positions using these titles are at various levels of categories that fall under the PSEA. By removing these appointments from its application, the clause poses a threat to a meritorious public service. I recommend that this clause be amended to narrow the position in question by removing the words "special adviser to a deputy minister or deputy head."
Bill C-2 would eliminate the priority right for appointment to public service positions which certain ministerial staffers currently enjoy upon ceasing to be employed by a minister's office. We support this change since it enhances merit in staffing, however, when coupled with stronger limits on activities that exempt staff can pursue after they leave a minister's office, this may increase the likelihood of more public servants being invited to work as exempt staff. While this kind of work experience can be positive, the PSC is concerned about the impact on the non-partisanship of the public service of unmonitored movement of public servants to and from ministers' offices.
Our preference would be to see this addressed through legislation. From our discussions with Treasury Board Secretariat, they are not ready to adopt a policy solution, which would also be possible. We consider this gap in the framework for monitoring movements between the public service and exempt staff, contrary to the spirit of Bill C-2, that is, to promote accountability in government. To ensure both the real and perceived political neutrality of the public service, we recommend that the PSEA be amended to ensure that this kind of movement of personnel takes place only as leave without pay approved by the PSC. The movement should be monitored, and subject to limitations respecting the maximum time that a public servant can spend in a minister's office. For example, the Ontario Civil Service Commission requires approval for civil servants to work in ministers' offices for no more than two years.
The PSC is an important part of the accountability regimes that underlie our system of responsible government. Our recommendations seek to improve that accountability. I would like to submit to the committee our proposed amendments.
The Chairman: The essence of your opening statement is you are proposing a number of amendments to Bill C-2, and with the exception of clause 104, where you actually referred to the removing certain words such as "special adviser to a deputy minister or deputy head." I see you have another paper with you, an appendage.
Senator Stratton: For the sake of working through this process, I have a suggestion. Often the first questioner goes on for a length of time. Perhaps we should shorten the first questioner, not that I want to limit them on the first round, but to allow the rest of us an opportunity, instead of rushing four or five senators through in ten minutes. We say to the first questioner, please limit yourself to 30 minutes or something like that: otherwise the rest of us are left out in the cold.
Senator Day: Perhaps if we excluded the "first" senator from that statement I would go along with it, but particularly from the point of view of six of the eight who are here, we have asked, because of the complexity and the diversity of this bill, one senator to take the lead for us with respect to each subject matter that we are dealing with. The rest of us are prepared to restrict our questions to give more time to that lead senator to lay the groundwork for the other questions.
With that one caveat, I understand we are dealing with a tremendous amount of subject matter here. Although we do not have closure and a limited time frame, we do have practical limitations. If we could understand that the first speaker from our side is someone who we all agree should have a longer period of time, the rest of us are prepared to tighten our time up.
Senator Andreychuk: In all my 13 years, this is the first time I have heard of this process. I hope what I am hearing is that the Liberal senators have agreed to give up some of their time for their lead examiner, but I hope all other rules apply as in other committees. I do not want this to be set as a precedent. I hope it is a voluntary arrangement amongst the Liberal senators.
Senator Campbell: It is, in fact, voluntary on behalf of the Liberal senators. We have been at this now for over three weeks following exactly the same procedure. We have agreed to shorten up. I have not asked any questions today at all because I want to give that time to our lead senator. Whether it turns out to be a rule in the future, I do not know, but certainly we have been doing that here, and it works well.
I agree, sometimes the first speaker goes on at great length, but it means that the rest of us will not ask questions. We should continue as it is.
The Chairman: Thank you, Senator Campbell. Senator Stratton is not here now, but he raised it. I wanted to explain that the steering committee made up of Senator Day, Senator Milne and, originally, Senator Joyal and I, did at the beginning realize that this bill is large and complicated. The opposition side wanted to have one senator deal with particular aspects of the bill. For instance, Senator Zimmer is an expert on election financing and took the lead on those issues, Senator Joyal on the ethics commissioner and so on. That is the way the committee has proceeded.
Regretfully, the first person this morning abused the rule, so I would like to go back to where we were before. It has worked well in the past. With Senator Stratton's intervention and Senator Day's response, I think we will make the system work well so that all honourable senators have a fair chance to pose questions.
Senator Campbell: I do not see how it was abused at all today. I do not see that there was any abuse in it. Many times it has not taken that long and sometimes it is much shorter. It depends on who the witness is and the information they give.
The Chairman: I asked a previous witness if he and they could keep their answers a bit shorter to give more time for questions.
Senator Cowan, you have the floor as the lead questioner.
Senator Cowan: On page 2 of your statement, in the first full paragraph on the top of the page, you talked about the fact that you had made many suggestions before the committee in the other place, but you said, "However, decisions on interpreting House committee rules prevented further consideration of some of these suggestions." What did you mean by that?
Ms. Barrados: A number of the suggestions were ruled inadmissible when they went through second reading of the act.
Senator Cowan: Due to the timing of when they were made?
Ms. Barrados: It was due to the interpretation of the scope of the bill. When I made the arguments before the House committee I was not persuasive enough to suggest that the Public Service Commission of Canada had many of the roles and functions of those other organizations that support Parliament. Those continue to be my concerns. The decision was that they were outside of the scope.
Senator Cowan: That was the decision of the committee?
Ms. Barrados: That is right.
Senator Cowan: Can you help me with this protection for draft reports? Is your concern that a draft report might contain something that subsequently turns out to be incorrect or incomplete, and that harm might be done if that information was disclosed before it was verified? Is that your point?
Ms. Barrados: Yes: The process of audits and investigations is collecting a lot of material, and what people say and think. Then a process of validation draws a conclusion. By not having any protection for those files, that preliminary kind of discussion is fully accessible, yet it may not at all be true; it may not stand any kind of scrutiny. As the auditors for an audit you stand behind the final report. You do not stand behind the elements that built up to that report.
My particular worry is, the way Bill C-2 is structured there are protections for people such as the Auditor General and for internal audit, but we are not really either one of those. There is no protection for our audits whereas there are protections for the others.
Senator Cowan: I want to direct your attention to clause 106 on page 92, which you refer to in your submission as well. Your particular concern there is the extension of this exemption to our protection to special advisers to deputy ministers and deputy heads. Is that correct?
Ms. Barrados: Yes, that is correct.
Senator Cowan: You are not concerned about the special advisers to the ministers?
Ms. Barrados: No, because this mechanism is used to make appointments where there is not a piece of legislation that allows the Governor-in-Council to make the appointments. Others could have concerns about special advisers to ministers, but I view that as my realm and area of concern. I am concerned about that, allowing exemptions for special advisers to a deputy minister or deputy head, because this provision potentially covers a wide gamut of people who traditionally fall under the Public Service Employment Act.
Senator Cowan: Do you know what the public policy reason is for the suggested change?
Ms. Barrados: It was a little bit mystifying to me because the work on this legislation and our input on some of the drafts was done in French, and it was not in the French. I had been assured the French would be brought to the English. I did not make a big fuss about it because I had been given that assurance.
When the hearings were held and the clause-by-clause, they took the English and made it consistent with the French instead of the other way around.
Senator Cowan: You thought it would be the other way around?
Ms. Barrados: Exactly.
Senator Milne: Back in May when you appeared before the committee in the other place, you made the point that the independent tribunal created by Bill C-2 duplicates functions that are already performed by labour relations boards. It is unlikely that the tribunal will be able to match the labour relations expertise of those bodies, which is repeatedly deferred to by the courts, yet Bill C-2 requires a tribunal to deal with sensitive matters of discipline and on-the-job reprisals. We question the need for the tribunal to deal with matters already addressed by other boards.
Do you care to comment on your statement before the committee of the other place? Do you still agree with that assessment? It seems to me that this bill may interfere with the grievance process and the right to grieve discipline, which is fundamental in a unionized setting.
Ms. Barrados: I really do not recall making any statements or providing any testimony on that subject.
Senator Milne: I am quoting from the record of the proceedings.
Ms. Barrados: Was it me who said that?
Senator Milne: It was the president of the Public Service Alliance of Canada. I apologize.
Ms. Barrados: Good. I was worried.
Senator Milne: We are talking unions here.
Senator Stratton: I know how you feel.
Senator Milne: Do you agree with that statement? Would you care to comment on it?
Ms. Barrados: I do not think it would be appropriate to comment. I try to stick within the ambit of my responsibilities.
Senator Milne: Do you think that this bill might interfere with a normal grievance procedure in a unionized setting?
Ms. Barrados: My focus is on the Public Service Employment Act. There were a number of changes made to the recourse system in the Public Service Employment Act. I really have not done any analysis to look further in Bill C-2 that would in any way impact that area of our work. My sense is that it would not, although the senator may well be raising a good issue.
Senator Milne: You mentioned in your statement that you would like the Public Service Employment Act amended so that your audit records would be treated in a similar manner as the Auditor General under Bill C-2. Has the Public Service Commission ever encountered any problems with the disclosure of audit records under an Access to Information Act? Why would you want this extra protection?
Ms. Barrados: I am looking for the same protection that all the auditors are looking for. It is the problem of standing behind the position. When we come out with an audit report and we have a conclusion, which is our conclusion, not the various pieces that have made up that audit report.
We gather all kinds of information, true or false, strong or weak, and then weigh and evaluate the information. We do not have rules of evidence and rules of procedures around how we gather that information. It is a very different kind of process. That is the reason why I am looking for that kind of protection. I am very concerned that if there is not that kind of protection, there will be a real inhibition for people to tell us things. The purpose is to try to gather as much information as you can. If you do not get that information and you do not have people telling you what they think is going on, then I think you will be hampered in your work.
Do we have requests for information? Yes, we do.
Senator Milne: You do, but we are talking about audits. Presently, are you not already adequately protected under the Access to Information Act? Why do you think you need this extra added protection that you are asking for in one of these many amendments you have given us?
Ms. Barrados: My position is the same as the Auditor General's. I think it would hurt us in doing our work. As I said earlier, Bill C-2 gives protection to the Auditor General for the external audits and it does give protection to internal audits, but it does not then give me the protection because I am not internal audit and I not specifically named in this bill so we have no protection.
Senator Milne: Have you ever had a problem in the past?
Ms. Barrados: Yes, I have.
Senator Andreychuk: You talk about wanting protection for draft audit investigation records. That baffles me because I understood that drafts, if properly earmarked and stated, are not the subject of release. Yet you are saying they have been in the past? In other words, this committee, for example, works on all kinds of drafts. Occasionally, we are embarrassed if something is leaked but it is not the order of the day for drafts to be the subject of anyone's comment. They are ongoing evaluations, as you said. Where does your fear come from and why would you want to specifically target draft audits?
Ms. Barrados: The interpretation I have received on the provisions that guide us under the Access to Information Act means that I have to give them and have I given them.
Senator Andreychuk: Does that mean that your interpretation has led you to the fact that you must keep every piece of draft material that you do and you cannot in any way dispose of?
Ms. Barrados: We must keep full records. We have to keep all the material; we cannot get rid of the material. We have to keep the drafts. Our audits deal with individual staffing and skills and attributes of managers. These are very sensitive issues, so we are asked for them and we have provided them, much to my worry. I have not been happy doing that but I was advised I had no choice.
Senator Andreychuk: Can you tell me under what existing provision — not in the proposed bill — obliges you to release draft documents?
Gaston Arseneault, General Counsel, Public Service Commission of Canada: I do not have the Access to Information Act before me but in the case of an audit report, there is a certain time that you do not have to release in preparation for your final report. However, after the publication of the final report all information becomes accessible under the general rule of access to information. In that sense, there may be a period that you do not have to release while awaiting for the publication of your final report but it is still information that is on file and must be released, if requested to do so, after that date.
Senator Andreychuk: Where does it say specifically that you do not destroy drafts in favour of a final report?
Mr. Arseneault: Again, I do not have the Access to Information Act before me, but under the act, there is a general rule that any information used in a decision-making process should be kept. Therefore, how do decide what you destroy and what you do not destroy by way of drafts? As a rule, any information that you have gathered is kept.
Ms. Barrados: In the spirit of that, I instructed my staff to keep it. But I worry about the release of the reports. As you know, in an audit, the process is that you send out draft reports to verify that it is correct before you issue your report. I table my reports in Parliament and I make sure that I have those reports circulated to people involved, so I verify and we are certain that everyone understands what we are saying and we have explained it properly or, if there is an error, we have corrected it.
Senator Andreychuk: I am still baffled, but the information you gather should be kept. A draft is how you put it together. It could be one of many drafts, but the final is what you actually conclude. How do we trap drafts like this in this case? It is baffling to me.
Ms. Barrados: That is why we are asking for the protection, because as the way Mr. Arsenault lays it out, the Access to Information Act says that everything is public. You then have provisions that exempt you; there are items that you can use to not disclose the information. After that period of time, those draft reports are not protected by any of those things so that we have to give them up.
Senator Andreychuk: I would have thought that one draft would automatically be disposed of when you are on to the next one because they are drafts and ongoing thinking as opposed to hard evidence or information from others. I think there are other ways of looking at how we got ourselves into this conundrum rather than an amendment to Bill C-2.
Can you tell me how long this practice of using special advisers to a deputy minister or deputy head has been in the Public Service Commission?
Ms. Barrados: The process of using GICs and the Public Service Employment Act to make appointments is a long-standing tradition. The effort to regularize this is something I raised when I was first appointed because I felt uncomfortable exempting GIC appointments from merit. That is essentially what I am doing. I could understand it under the previous legislation where we had a long and heavy process. However, I did not feel comfortable with it under the new legislation.
I was glad to see this. I have no problem with what we are trying to do here in terms of regularizing the process. In the drafting, the sweep is too large because most people coming this way are at the level of deputy, associate deputy or equivalent. At one point, there was an exercise to look at all people appointed in this manner, and to summarize their titles. They came up with the suggestion that this appointments be included but in fact, they are all equivalents to associates or deputy heads. The idea is to have a mechanism for the Governor-in-Council to appoint those senior positions.
No one intends for them to be able to reach into a department, but that is what the legislative provision provides. I think that is a threat to merit in the PSEA.
Senator Andreychuk: When you say this process has gone on for a long time, how long do you mean? Are you referring to 10 years, 20 years or 50 years?
Ms. Barrados: I have to come back to you with an answer. Certainly 10 years at least, but I must confirm an exact length of time for you.
Senator Zimmer: Thank you for attending this morning. I have one question in the area of movement of individuals between the Public Service and the minister's office who are known as exempt staff.
I had the good fortune of working in the 1970s with the Minister of National Defence. After seven years, I was offered that opportunity. I did not accept it. I moved back to Winnipeg and worked there.
However, I am not sure whether the rules are still the same, but I recall two or three of them. The first rule was that exempt staff had to work with the minister's office for at least three years. The second rule was they needed the appropriate qualifications equal to the position. Do those conditions exist today? I think the key point is that they would need equal qualifications.
My other question is: If that rule was obeyed and followed, would you still hold the same position that this opportunity cease to exist?
Ms. Barrados: The way the system works, yes, the people who enter in that manner must be qualified, but they are given a priority status. That means that no one else is considered. If there is a vacancy, the people on the priority lists get the first call on those positions. They are at the head of the line.
The proposed change in the legislation allows ministers' exempt staff to compete in internal competitions. Therefore, they have an advantage in the sense that they are allowed in the internal processes as opposed to coming in from outside, but they are no longer at the head of the line. They are part of the group that must compete.
Senator Zimmer: Therefore, they must compete equally or else the priority status is taken away?
Ms. Barrados: That is right.
The Chairman: When I introduced you, I stated that you were confirmed as President of the Public Service Commission of Canada, effective May 21, 2004, by Parliament.
For purposes of this committee and for the record, I would like you to define your position and your powers for us. It seems to me that you are like an officer of Parliament: you have certain executive duties because you are in charge of staffing authority for the Public Service and yet you carry an oversight role, which other agents of Parliament do. Therefore, your position is different from many other officials who have come before us.
For purposes of the committee and the record, please define what your powers, authority and role are.
Ms. Barrados: We are a highly unique organization. When I first came to the Public Service Commission of Canada, we spent some time trying to understand the position where we stood vis-à-vis the others.
As you know, I come from the Office of the Auditor General, and I am familiar with the powers of same. This question is an obvious one of where we sit in relationship to the powers of the Auditor General.
We have an oversight responsibility. We have a clear link with Parliament, and that link is through the process of nomination of the president. For me to be nominated, I am subject to review by both Houses, and I must obtain a vote in both Houses. Hence, my request for the amendment would bring the position into line with the others. For the person who succeeds me, it would be nice to have consultation with House leaders. Otherwise, it is a tough process to go through.
The difference between us and others such as the Information Commissioner, Privacy Commissioner and the Auditor General is that we hold an executive authority.
The Chairman: Is that as a result of the staffing component?
Ms. Barrados: We hold the authority to staff. Under Bill C-2, that regime is now different than what it has been in the past.
The last change to PSEA made us more parliamentary but also suggested delegation. We now operate a delegated model. We do not do as much of the work — hardly any of it, actually — that we did in the past. That change made us more parliamentary. We still hold the authority, but we run a delegated system. No other department is similar to us.
Some of the new agents supporting Parliament are given order powers. Therefore, there is less of a clear distinction between those who support Parliament and have no order powers and those who do not support but have order powers. Our department is unique in that we hold the executive authority.
The Chairman: Would you say your department's main role is oversight?
Ms. Barrados: The thrust in the new legislation and the reform in the Public Service Employment Act is more towards an oversight body.
As I said, through both the appointment process and the expectation that we complete audits for Parliament, that change has shifted the balance in our conduct. As part of the transition and the work we do, we still have a service component. The big difference between what was practiced in the past and what is practiced now is that it is entirely discretionary. In the past, one used to be required to come to the Public Service Commission. Now one is not required to do that. In my mind, that change is the spirit of operating this delegated model.
The tradition behind why the Public Service Commission possesses authority is the long-standing worry about political interference and patronage. It has been like that for the last hundred years.
The Chairman: Another major difference between you and the others is that PSC reports are tabled in Parliament through a minister.
Ms. Barrados: That is right. This is one of the other amendments I suggested. At the time the PSEA was amended, a clause was added to allow direct reports. There is a lot around the annual report in terms of process and notice, but then a clause was added that stated the PSC can report directly to Parliament under circumstances I felt were important and if there was an urgency in the time.
The Chairman: You said a clause was added. By whom, when and where was this clause added?
Ms. Barrados: That clause was added when the Public Service Employment Act was amended as part of the Public Service Modernization Act passed in November 2003.
Everyone took that to mean a direct tabling — members I talked with, myself, the people I briefed and even the Minister of Heritage. When I exercised that amendment once the law came into force, it was the absence of the particular words that allowed it not to occur. In fact, the same drafting error was made in Bill C-2.
That was corrected in the clause-by-clause for one of the other acts; I believe it was in the Lobbyist Registration Act. In my view, it was a drafting error.
The Chairman: There was some confusion in the dual roles.
Senator Joyal: Ms. Barrados, I would like to put the issue in a broader context.
The specialized professional media is obsessed with the capacity of the Public Service Commission to recruit among the younger generation. There is concern about replacing the large number of baby boomers who will take their retirement leave after having completed their years in the public service.
What kind of initiative are you contemplating to address that issue in the context of indirect impact or unintended consequences of the good objectives of this bill on your operation generally?
Ms. Barrados: There are many features of this bill that fit very much with the changes that were put into the Public Service Employment Act. I feel that the approach that we have taken to run a delegated model, to run an accountability system, to provide good robust reporting to Parliament, is all in the spirit of this proposed legislation. The amendments that I am putting forward are looking to make it easier for me to do my job in the spirit of that legislation.
Regarding your question about difficulties recruiting young people, I am releasing my annual report on October 3, and we are presenting some of the numbers in there about the interest that Canadians have in public service. What I am seeing is that there is a high and continuing strong interest on the part of young people to get positions in the public service. We have very large numbers of applications. My problem is not that I do not get applications; it is that I have so many applications and I have to treat them fairly.
Our challenge in the public service is what do we do with the young people when we get them in; how do we develop and grow them? I think we are facing a challenge on the top ends of the bureaucracy, where everyone is about the same age and getting close to retirement. Therefore, I would cast it a little differently.
Senator Joyal: What are you doing to address that upper crust of the pyramid; those levels of responsibility that normally have the capacity to resource through experience and long-standing service in the public service?
Ms. Barrados: This is where the changes in the Public Service Employment Act have shifted the responsibilities. It is for the employer, the government, to do its planning and define its needs. I do not view that as my role. Part of my arm that is still available is that once those needs are defined, we will help them find the people.
We are doing research in terms of how to modernize our processes and how to reach them. We will be there to provide those tools, but it is not our job to define the need or to do the training development. It is more my job to make it possible to do it in the spirit of what the PSCA says and then report back to you as to how well we are doing.
Senator Joyal: You cannot explain to us in greater detail how you will be addressing the private sector on those grounds. If I understand that you will have such an important need at that level, you cannot promote people in those positions that do not have the capacity, as much as you are able to identify and pronounce on their capacity. You will have to go to the private sector; and there you will face the challenge of addressing the possible perception that there is a different context for those people to operate within the public service and the capacity for you to attract them.
How will you tackle that issue?
Ms. Barrados: There is no doubt that the public service is different than work in the private sector. From my days at the AG and my work in the Public Service Commission of Canada, that is very evident. There are many more responsibilities and accountabilities in the public service than people in the private sector.
We have had a number of discussions with some of my colleagues about how to help facilitate this move from private sector to public sector. It has not always been easy because the contexts are so different. The challenge for the public service is along the lines of what you said, which is we have traditionally grown our people in; we get them at entry and grow them up. We are now reaching a point where we can no longer do that. The Clerk of the Privy Council is very seized by this. He sees this as one of his priorities.
Senator Joyal: Can you give us an idea of what will be the volume or the numbers roughly in proportion to the number of the retreats versus the need you have to fill those positions?
Ms. Barrados: I can give you an example. We run a post-secondary recruitment program. We had 35,000 applications last year, 17,000 people, because some went to more than one stream, we hired 550 of them. Those are the kinds of volumes I am looking at.
When you come to the specialty jobs, that is a different thing. Then you do not get these high volumes.
Senator Joyal: That is what I wanted to ask you. There is the perception that there is a large need for auditors because of all those new positions all over the departments. Can you explain the impact of that need or the description of that need in the system?
Ms. Barrados: There is no doubt we are having an issue with building up the audit capacity. I am experiencing that myself. It is a specialized skill. By the time you get an audit report, you want to make sure it is done to standard and it is correct.
I am finding that I do not have any difficulty on the entry levels. I have more difficulty with the higher levels because I am competing with the Auditor General and the internal auditors. I have concluded we have to do more training of our own.
Senator Joyal: There could be a delay in the implementation of the objectives of that reform in the context of the need for the proper staffing at that level, is that correct?
Ms. Barrados: A comment on my own experience is that I cannot deliver the number of audits that I would like to deliver to Parliament at the speed I would like to because I do not have the capacity in the audit group. I have to build and create that capacity because I do not want to go forward with things that are not complete and accurate.
Senator Joyal: That is for your service per se.
Ms. Barrados: That is for the Public Service Commission of Canada and our oversight responsibility on the human resource management, staffing and recruitment; it is for that section of the audit. I believe that the others are having similar problems because we tend to take from one another and that does not help.
Senator Joyal: Are you aware of similar needs in other levels or in other sectors of the public service in Canada?
Ms. Barrados: Again, the same if you are still talking about the audit.
Senator Joyal: I took the audit as being one key.
Ms. Barrados: There are issues in terms of recruiting the internal audits because provisions in Bill C-2 raise the requirement for internal audit. There are also provisions in terms of deputy-direct accountability. To do those things, you have to know your management systems are working well, so there is pressure on the internal audit side.
The Auditor General has her pressures to get people, although she is an attractive place to work. I am finding I cannot bring in people as fast as I would like. I run a lot of competitions and I get a lot of people applying, but to get all the characteristics and attributes I am looking for is difficult.
Senator Joyal: Is there a report or up-to-date assessment of the overall needs in the system? If the objectives of this bill are to be implemented in a rather fast and effective manner, as everyone expects, the day the legislation is enacted you become accountable for the results. If there is a need for additional human resources, we should know that now we do not create expectations that will not be met in the future months or years based on the objective of this bill.
Ms. Barrados: That is a good question and that is what I would expect the employer to be doing in terms of providing the estimates of the kind of resources and capacity that would be required and how they plan to go about meeting them. The Public Service Commission of Canada is the instrument that will try to facilitate them getting there, but it is for the employer to define the need.
Senator Joyal: Did you receive any specific request in terms of numbers and description of levels of experience?
Ms. Barrados: Associated with this bill, no, I have not.
Senator Joyal: You did your own house evaluation to be sure that you were able to, but do you have the information about the overall need of the public service in relation to this bill?
Ms. Barrados: No, I do not. I have had conversations with the Comptroller General, who is looking for auditors, and we have also done work on the financial officer side to support those particular streams of recruitment, but I have not seen anything that suggests the HR impact of this bill.
Senator Joyal: Who would have that? Would it be the Treasury Board?
Ms. Barrados: I would think it is the minister or the Public Service Human Resource Management Agency that is under his responsibility.
Senator Joyal: Maybe we will raise that issue with the Treasury Board.
The Chairman: They will be returning to the committee.
Senator Joyal: Maybe it would be wise to inform them that this is an issue we would like to review.
The Chairman: I believe they are aware of our proceedings and will be aware of your question and the response of Ms. Barrados.
Senator Day: We have been talking about audits and internal audits. An internal audit is a financial type audit, is it not?
Ms. Barrados: No, not necessarily.
Senator Day: The Comptroller General?
Ms. Barrados: The Comptroller General is responsible for the financial side but also for the management control framework, so that would be anything you might put under the ambit of financial or management controls. You would not be looking entirely at financial things but you could be looking at efficiency of processes. You could be looking at efficiency of delivery and could potentially be looking at human resources. It is a whole management control framework.
Senator Day: In regard to the internal audits that you talked about, you have people internally who look at what you are doing.
Ms. Barrados: That is right.
Senator Day: Then you are also talking about audits from your oversight point of view. Would you explain about those audits and your concern that those investigators and auditors should be protected?
Ms. Barrados: I have an internal audit group that looks at my own financial management control. They look at how well I am managing the place.
Senator Day: Are you talking about them?
Ms. Barrados: I am not talking about them because they actually are protected. They have protections for their working papers. I am talking about my group of auditors, who are doing the audits against the Public Service Employment Act that report to Parliament on how well things are going under the Public Service Employment Act and what we are doing to correct. For example, we have done a couple of audits on some of the small agencies, like the Military Police Complaints Commission and the RCMP Complaints Commission, the Privacy Commission. We did the audits, we effected the delegations and we impacted on their powers to exercise their management responsibilities. We did reports and we reported those to Parliament. Those are parliamentary audits. Those are my external audits. They are audits of the system outside of the Public Service Commission of Canada.
Senator Day: Thank you, that is helpful. That term "audit" is used so broadly it is almost impossible to include and understand what you are talking about without a definition each time. That is an example of why the Auditor General's role has expanded so significantly over the years.
Regarding your concern with respect to reporting to Parliament on an independent oversight, I felt that the Public Service Reform Act gave you that power. In fact, I am probably on record as interpreting that section to do just that, that you would not have to go through a minister, the Minister of Heritage, which is another issue. I felt that if there is something serious came up and you felt you should make a report during the year that you would be able to report directly.
Ms. Barrados: Everyone did, and the discussions I had during my confirmation hearings left me with that impression as well.
Senator Day: However, you say you thought that was a drafting error.
Ms. Barrados: Yes.
Senator Day: Are you getting advice from the Department of Justice on this? Why are you coming to that conclusion?
Ms. Barrados: I went to the clerk of the House and said I would like to table my report. She called the House lawyer and there were many discussions between my lawyers and their lawyers. The lawyers concluded that in the absence of the specific phrase, I had one of two choices; I could talk to the Minister of Heritage and say I want it tabled right away, or I could try to get the House leaders together and get them to agree and then they would go ahead.
I had an audit on the Canadian Space Agency, which I thought was important to get out because it demonstrated all kinds of problems and there is a process for naming a new head. They have not made much progress, but I thought it was important to have that out there while that kind of thing was going on. The Minister of Heritage tabled it for me right away. I thought given all the other things going on in the House, it probably was not a good use of my time or the House leaders' time to have discussions on that issue unless I had a problem.
Senator Day: Do you mean to fight that issue?
Ms. Barrados: That is right. I thought I would use these kinds of venues instead.
Senator Day: We appreciate you bringing this to our attention. On that particular situation, did you have occasion to try to file this report through the Speaker in the Senate?
Ms. Barrados: No. Should I have?
Senator Day: I am wondering. You would two options here. You went to the House of Commons and their lawyers said that you could not do it. There is another place.
Ms. Barrados: Good advice, senator. I should have talked to you.
Senator Day: We have a different lawyer and lawyers often disagree with one another.
Can we talk about exempt staff in ministers' offices for a short while? I am referring you to page 92 and your comments with respect to this expansion of individuals and people under the proposed amendment to the Public Service Employment Act, 127.1(1) which states, "The Governor-in-Council may appoint persons to the following positions and fix their remuneration..." At subclause 127.1(1)(c) it says, "... a deputy minister or deputy head."
Would these people, who have not gone through this merit and all the other rules that you have set up for hiring of people within the public service, be described in a similar manner? Would they be exempt staff?
Ms. Barrados: No. The exempt staff is the staff in ministers' offices. They are totally exempt from the applications of the Public Service Employment Act. They are not public servants in any way and there is a separate set of rules for dealing with essentially political staff.
Deputy ministers are not exempt staff, but Governor-in-Council appointments. They have the obligations, particularly for political involvement still under the Public Service Employment Act, but the Public Service Commission of Canada has no role in their appointment. This is a prime ministerial prerogative with the clerk.
Senator Day: We have a group of people who come in as advisers for the deputy ministers; this bill is proposing to do this. Has that ever been done before?
Ms. Barrados: The proposal that is in here is actually regularizing a situation that with which I was uncomfortable.
I am uncomfortable with the last bit of subclause (c). If there is an absence in a piece of legislation that says there is a position for an associate deputy minister, or a deputy minister, as was the case in the reorganization of HRDC, and all those other reorganizations, you do not have a piece of legislation that allows for those appointments. Then there has to be a piece of legislation that is used and it is the Public Service Employment Act. The only way that can be done is if the Public Service Commission of Canada agrees to exempt from the applications of the act except for the political activity parts.
I was uncomfortable with that, because I assumed they were meritorious appointments and if I am exempting, people on the Hill could ask me: You exempted them: Did you think they were meritorious?
I did not want to have that kind of conversation. I think this route is better. This proposal regularizes something we had worked out to facilitate it. I have no problem with the proposal.
I have a problem with making it too broad, though, because this then puts prime ministerial and clerk prerogative potentially right into the public service. That is counter to the Public Service Employment Act and what it is all about.
Senator Cowan: Do I understand you to say that proposed sections 127.1(1)(a) and 127.1(1)(b) simply clarify the current situation?
Ms. Barrados: That is right.
Senator Cowan: While you are uncomfortable with it, it is not a change; is that correct?
Ms. Barrados: I am okay with it because I am no longer being asked to exempt them. I am fine with this.
Senator Cowan: Before this, you would have to exempt them?
Ms. Barrados: Yes, and I am uncomfortable with that.
Senator Cowan: However, you think it goes too far when we get to 127.1(1)(c)?
Ms. Barrados: That is right.
Senator Zimmer: Ms. Barrados, when you say they may not be meritorious, my understanding is that one reason staff were exempted and allowed to move into the public service was because in a government situation, in a minister's office, there is the risk of being defeated. I think to counter that they allowed these staff to be exempted. However, coming back the other way, you said meritorious in a deputy minister's position, do they not still need the appropriate qualifications before they accept them?
Ms. Barrados: Yes, but it is a question of who is making the decisions about what is appropriate. In the case of deputies, it is the Prime Minister and the clerk. If we do not have this kind of provision, it was me exempting them from that process and I would like to keep the responsibility clearly with them.
The other thing I am nervous about with the exempt staff side is that we have tightened up the exempt staff in terms of their ability to come back into the public service. We still have some advantage. We have put in all kinds of restrictions as to what can and cannot be done with lobbying. There was some difficulty getting people to take those positions. I have a concern that we have more public servants going into that area, and that is totally unmonitored. For me this is a big risk. I suggest an amendment to take care of that, because we do it all on one side and we do not do it on the other side.
Senator Zimmer: You say in the amendment you propose, section 35.4(2) to be added to clause 101 on page 91 of Bill C-2:
...employee's ability to perform his or her duties in a politically impartial manner will not be impaired or perceived to be impaired upon his or her return to the public service.
It is a tough call to make on employees going to the public service because you will need to judge employees based on their current activity. You are taking a bit of a risk, but it is your best judgment. I think that is the only way you can judge it.
My real question is: On the way back, if, while an employee is in the minister's office, the employee becomes extremely political, what will you do if the employee wants to come back into the public service and that employee has violated those concepts of arrangements?
Ms. Barrados: We have the same kind of provisions in the Public Service Employment Act for allowing people to run for political office. It is a highly political activity. The current regime is that public servants must obtain permission from the Public Service Commission of Canada to run for political office. Such permission is granted most of the time. In some cases, permission is not granted, and it has a lot to do with the position an employee leaves and the kind of position the employee goes back to.
That is the nature of the discussion. Situations where we have not granted leave are when an individual has worked out an arrangement with the department to have a different kind of job that is inside the organization, the employee does not have a public profile, the employee does not have a public presence, yet the employee meets the department's requirements. Then we say it is all right.
Senator Zimmer: What if an individual is involved in a minister's office only as an assistant, does not run for a position, has done things that are political and then tries to come back?
Ms. Barrados: To me, it is exactly the same issue. We had a Supreme Court decision that said public servants have the right to exercise political activity. It is not an absolute, so it is a case-by-case judgment.
Senator Day: I want to ask a supplementary question to Senator Zimmer's question and then I will get back to my own.
You raise a good point with respect to if the market for ministers tightens up, the natural place a minister to start looking is in the public service. This proposal that you put here for us to consider: would the Public Service Commission of Canada apply that test?
Ms. Barrados: Yes.
Senator Day: How can we protect the public servant from you exercising that authority? Is there a built-in mechanism? If you say no, you cannot go because this will not look good, that minister is too political, what he or she wants you to do will be too political and therefore it will compromise the independence of the public service. How does the public servant appeal that if the person is refused?
Ms. Barrados: They can go to judicial review. One person has already taken me to court.
Senator Day: Are you exercising this now?
Ms. Barrados: Yes: This is with regard to the candidacy. This is not regarding movement back and forth. I do not have any jurisdiction there. About a hundred people have done that over the last 11 years, so it is not a theoretical notion. That was before all these constraints. The same regime applies, sort of parallel to the decisions on candidacy: it is subject to judicial review. Of those decisions, which we make, one has already gone to court.
Senator Day: At least there is an outlet, and judicial review is the outlet. Has the Treasury Board Secretariat established a series of rules that have created the basis for your proposed amendment here?
Ms. Barrados: In the early discussions, I was asked whether we could do it through policy, and I agreed that my preference was legislation but it could be done through policy. I thought we had an agreement for a policy solution, and now I have been advised by the Treasury Board Secretariat that they do not want to do this at this time, that they may consider it as they do their ongoing review of their policy suite. That is why I am coming back here with the suggestion for legislation. I think it is a gap, and it is something we need to address.
Senator Day: There is nothing there now?
Ms. Barrados: That is right.
Senator Day: You have some indication that Treasury Board is not interested in doing something right now on this, and that is why you propose it?
Ms. Barrados: Yes.
Senator Day: My final question: You are requesting to be added to the list of organizations under in proposed section 16.1(1) on page 118 of Bill C-2. Last week we had an extensive discussion on this area of access to information. I heard your discussion with Senator Andreychuk in relation to this section, and I wish she were here for this discussion, but it will be a matter of public record in any event. The media people who came to talk to us told us it is extremely important for them to see drafts of various documents, not just the final document, which has been sanitized and made for public consumption. Drafts are extremely important to them. The point has been made more than once here about how important that is.
You would like to be added to the list under section 16.1(1). You will note in the second line of subparagraph (1), it reads "shall refuse," and that is pretty strong. Some have said they would rather see "may refuse" to give some discretion.
You would like to be added as proposed subsection (e) after the Auditor General, being able to refuse to divulge records. There is the importance of protecting the names of individuals here, of course, which we will not get into.
Proposed section 16.1(2) qualifies this, but only with respect to the Information Commissioner and the Privacy Commissioner. Once the investigation or audit and all related proceedings are concluded, the documents can be made public. Would you be happy to be added to 16.1(2) as well?
Ms. Barrados: I find the technicality of the drafting a little difficult, because those were things that were put in at the last minute. Perhaps Mr. Arsenault can speak to the technical aspect. From my point of view, it is very important for me, in order to do my job, to have some form of protection on the material I gather and those draft reports.
It is formulated as absolute, but I currently have absolutely no discretionary power. I have to disclose them all because I am caught neither under internal audit nor this.
Senator Day: You would like us to put you in 16.1(1). You are quite right to focus on the "shall" and "may," but what about adding you as one of the exceptions under 16.1(2)?
Ms. Barrados: I will ask Mr. Arsenault to address that.
Mr. Arseneault: Proposed section 16.1(1) essentially says that the information shall not be released. Section 16.1(2) makes an exception for the Information Commissioner and the Privacy Commissioner whereby after the audit is completed they must release the information.
Senator Day: That would presumably include all drafts and all other things.
Mr. Arseneault: My understanding is that the commission wants to be under 16.1 but not subject to 16.1(2).
Senator Day: Notwithstanding that the media was saying that they would like to look at all of the drafts and working papers, you would rather that not become public?
Ms. Barrados: Yes. As an officer who must report to Parliament, I am here to answer any questions. If there are things that need to be disclosed for proper understanding, Parliament need only ask.
Senator Day: Yes.
Ms. Barrados: Parliament hires and fires me. I am very beholden to what parliamentarians want. In extreme circumstances, which can occur in my case although perhaps not so much in other cases, there is still access to the courts. The courts can subpoena these documents.
Senator Day: Speaking of Parliament hiring and firing you, the appointment of the president should be made by the commission under the Great Seal after approval by resolution of the Senate and the House of Commons. That gives you some protection.
In your presentation you asked for consultation with all the political parties. The fact that there must be a resolution passed in each House of Parliament would get you a long way towards where you would like to be, does it not?
Ms. Barrados: It is not an issue for me. I went through the parliamentary process. I think of someone else being named to this position. I worked for the Auditor General for 18 years and spent a lot of time on the Hill. This was a process I understood reasonably well. This is really for subsequent appointments. There was an effort in Bill C-2 to regularize and make it common. The element that is not in mine that is in the others is this required consultation with the House leaders. This is good practice. Since it is in for the others, it should be in for the President of the Public Service Commission, because that is the way to facilitate going through the appointment process.
Senator Milne: Ms. Barrados, you say that your auditors are not protected when they are doing external audits. Are they protected doing internal audits?
Ms. Barrados: They are protected from disclosure. I have another issue with the auditors.
Senator Milne: Yes. Clause 224 of the bill says:
The Private Sector Integrity Commissioner shall refuse to disclose any personal information requested under subsection 12(1) that was obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under the Public Servants Disclosure Protection Act or an investigation commenced under 33 of that Act.
It seems to me that this changes part of the Privacy Act. The Privacy Act now says that, subject to this act, every individual who is a Canadian citizen or a permanent resident has a right to and shall, on request, be given access to any personal information about the individual contained in a personal information bank and any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
This bill says that the public sector integrity commissioner shall refuse — must refuse — to disclose any personal information requested under subsection 12(1).
I think we were told by the previous witness that this only covers personal information about the whistle-blower, for example, who is actually requesting information or who may be trying to correct a problem. However, it seems to me that the wording of that section is much broader than applying to whistle-blowers alone. This will apply to everyone, including you.
Ms. Barrados: Mr. Arsenault understands the technicalities of this much better than I do, but my understanding is that this is only for the Public Service Integrity Officer. There are issues in relationship to the Privacy Act, but I thought that in the spirit of Bill C-2, even though there was some questioning about whether I was in the ambit of the bill, I have stayed within the ambit of the bill, in my opinion, and I am asking for the same kind of protections that the auditors have. I know that the Privacy Commissioner does have issues with the application of the Privacy Act, and I would look to that kind of review before I raised any of that. I am not asking for the kinds of protections that are part of this whistle-blowing and reprisal regime.
Senator Stratton: Thank you very much for appearing this morning. Your presentation was very good.
Do you think Bill C-2 should be passed?
Ms. Barrados: I am torn in answering that question because there is me as a private citizen and there is me as the President of the Public Service Commission of Canada. There are features of the bill that will be helpful to me, and we have discussed those, such as regularizing the Governor-in-Council appointments, so I would like to see that passed. There are some other elements that were put into the legislation as a result of debate in the House which I would like to see passed.
On the other hand, if amendments were made among the lines I suggested, my work would be made much easier.
I am not sure that is a very good answer, but I must speak as the President of the Public Service Commission of Canada.
Senator Stratton: This morning Dr. Keyserlingk said that despite its flaws the bill should be passed and that there would be monitoring, because this bill will come under review in five years. He said that the legislation should be watched over that period of time, as this committee will do. That was his position. I am not trying to put words in anyone's mouth and I am not asking for a response. There is a difference.
Ms. Barrados: It is my understanding of the five-year review that it applies to that particular section of the act. I am not so sure that is entirely true for the whole act. One area that I have watched closely where I do not have an involvement is the public appointments commissioner. Obviously, this area is getting close to my area of expertise in terms of the selection and screening of people. That section does not have any suggested review.
In the case of the Public Service Employment Act, there would be a five-year review, which is a good thing.
Senator Stratton: We are concerned about the position as applies to agents of Parliament. You would like to become an agent of Parliament. As I was told, the Public Service Commission of Canada is the source of staffing authority for the public service. Given this, you, as president, perform an executive function and carry out an oversight role. All current agents of Parliament exercise oversight roles only. It would be unprecedented to include an organization that is also a source of executive authority. How would you respond to that?
Ms. Barrados: It is not a question of whether I would like to become an agent of Parliament. Rather, as I mentioned earlier, there is a range of organizations and ours is in a class unto itself. Some organizations have absolutely no executive powers and others have had some order powers added in Bill C-2. Then there is the Public Service Commission of Canada. I am not asking to be like the others. You will notice that I did not ask for any changes on how my annual report is tabled. I am asking for the opportunity to do a better job and that it is easier for me to perform the external audit role. I have not asked for any of those protections for the other parts of my mandate. I agree that my position is a special model that bears two sets of responsibilities but the requests are for one set of responsibilities only.
Senator Stratton: It will be interesting to see how the officials respond to that.
Senator Campbell: I do not know that I agree with Senator Stratton on one of the witnesses this morning saying that this is like the Ten Commandments from the mountain and should be simply accepted. Do you believe that the bill could be improved through amendments?
Ms. Barrados: Yes, senator, and I am here today to suggest specific amendments. I am not being asked to be made something I am not but rather I am simply asking to be given some of the tools that would make it easier for me to do the job that Parliament has asked me to do.
Senator Campbell: That is exactly what the committee is looking at.
Senator Joyal: Ms. Barrados, my question is in relation to the public appointments commission. I am referring to pages 175, 176, and clause 227 of Bill C-2, which amends the Salaries Act. The only reference to the Public Service Employment Act for employees of the commission is the chairpersons or other full members of the commission and the corresponding level of the chairman of the commission. I am trying to understand whether the chairman of the commission is at the level of a deputy minister or deputy head that would allow that person to receive support from appointments that are not covered by the Public Service Commission of Canada.
Ms. Barrados: The way this works is that because you have a piece of proposed empowering legislation it identifies the position in legislation in an unusual way by using the Salaries Act. In any case, the position is such that the Governor-in-Council can make those appointments without me. Appropriately, the bill states that the staff working for the public appointments commissioner would be public servants and, hence, have to come to the Public Service Commission of Canada.
Senator Joyal: May I ask whether the salary of the chairman, which is fixed by the Governor-in-Council as provided by proposed section 1.2, would be at the level of a deputy head or a deputy minister?
Ms. Barrados: That would be entirely at the discretion of the Governor-in-Council.
Senator Joyal: If the chairman were to receive a level of salary equivalent to a deputy minister or deputy head, or the equivalent, would it qualify his or her position as admissible to appointments of special adviser under the Governor-in-Council?
Ms. Barrados: Are you referring to the other proposed amendment?
Senator Joyal: Yes.
Ms. Barrados: It is not necessary to use that other proposed amendment because it is in the statute. If you did not pass that proposed amendment, and the government wanted to appoint a public appointments commissioner, they would have to use the mechanism that is currently in place — exemption from the Public Service Commission of Canada and an Order-in-Council. There is deputy minister, associate deputy minister and deputy head. Once you have a deputy head, you have a range of salaries.
Mr. Arseneault: Perhaps it should be stated that, as a general rule, the Public Service Commission of Canada has the authority to appoint everyone in the public service, unless there is a statute that gives another body that specific authority. In this case of the public appointments commissioner, the statute provides for the appointment of that commissioner, so there is no need to refer to the other proposed amendment that the President of the PSC is putting forward. The other is used to replace a system whereby there is no statute to provide for a certain appointment, therefore it is the authority of the Public Service Commission of Canada. The nature of the position to be staffed is one that looks a lot like what would normally be that of a deputy head or deputy minister but, for a number of reasons, it is decided that it should be staffed in a similar manner to that of these other positions, which is by way of Governor-in-Council appointments.
The purpose of this is to appoint deputy ministers and deputy heads, which is part of our request that it be in situations where no other statute provides for such an appointment. It is to provide that limited area where the Public Service Commission of Canada has been making exceptions to its appointment authority because the nature of the appointment looks like a normal Governor-in-Council appointment. Therefore, the purpose of the proposed amendment is to capture that area. The concern of the PSC is that the wording is too broad, such that a special adviser to a deputy head could apply to almost any position in the public service, and the PSC does not want it to go that far.
Ms. Barrados: Senator, was your question about whether the public appointments commissioner could get special advisers?
Senator Joyal: Yes, or a deputy head.
Ms. Barrados: Yes, the public appointments commissioner could get a deputy head as a Governor-in-Council. If it were not named in the act, they could use that provision. The public appointments commissioner has an executive director who is a deputy minister.
Mr. Arseneault: I would say he could get a special adviser, under the broad wording of the clause as it reads. There is only one deputy head to the organization.
Senator Joyal: As stated in clause 227.1, if I am not mistaken, the proposed public appointments commission could get a deputy head or special adviser through the Governor-in-Council.
Ms. Barrados: The PSC would like the special advisers to be equivalent level to a deputy head or an associate deputy minister — a senior person — and to be a GIC appointment but not going down lower, which you can do with special advisers.
Senator Joyal: That answers my question.
Senator Cowan: I am sorry that Senator Stratton left but he put to the witness a representation of what Mr. Keyserlingk said this morning. I believe that the record will show that, as Senator Campbell said, Mr. Keyserlingk said his preference was to have these amendments made and that it would improve the proposed legislation. However, if it were not possible for reasons he was unaware of to make the suggested amendments, then he would like to see the bill passed. The testimony, as represented to Ms. Barrados by Senator Stratton, was not exactly as stated. I wanted to clarify that in support of what Senator Campbell said.
The Chairman: Ms. Barrados, thank you for some compelling responses to difficult questions. You have delineated an answer to some of the questions that a number of people had about the Public Service Commission of Canada and its role and powers under Bill C-2.
The committee adjourned.