Proceedings of the Standing Senate Committee on
National Finance
Issue 25 - Evidence - January 28, 2015
OTTAWA, Wednesday, January 28, 2015
The Standing Senate Committee on National Finance met this day at 6:45 p.m. to study the subject matter of Bill C-520, An Act supporting non-partisan offices of agents of Parliament.
Senator Joseph A. Day (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this evening, we will be continuing our study of Bill C-520, An Act supporting non-partisan offices of agents of Parliament.
[English]
We began our study yesterday on Bill C-520 by hearing from the bill's sponsor, Mr. Mark Adler, Member of Parliament for York Centre in Ontario. This evening we are pleased to welcome a distinguished panel: Anne-Marie Robinson, President of the Public Service Commission of Canada; Michael Ferguson, Auditor General of Canada; Daniel Therrien, Privacy Commissioner of Canada; and Graham Fraser, Commissioner of Official Languages. Finally, but certainly not least — we're all equal here — Suzanne Legault is the Information Commissioner of Canada.
I understand that each of you will have brief remarks, and then we'll go into a question and answer process, as you are familiar with. I propose we begin with Ms. Robinson and then proceed along the table in the order in which you appear.
[Translation]
Anne-Marie Robinson, President, Public Service Commission of Canada: Mr. Chair, I would like to thank you and the members of the committee for this opportunity to meet with you regarding Bill C-520.
[English]
Our analysis on Bill C-520 comes from an organization that has a unique perspective and experience in administering non-partisanship. Merit and non-partisanship are the cornerstones of both a professional public service and the Westminster model of parliamentary government.
[Translation]
They lie at the heart of the mandate of the Public Service Commission, or PSC. We recognize the bill's objective of increasing transparency and accountability, and we are committed to ensuring that public servants carry out their duties in a non-partisan manner.
[English]
However, the commission is concerned that the proposed bill will have significant consequences for our merit-based appointment system. Canada has benefited from a merit-based staffing system for the federal public service since 1908. This regime relies on a number of requirements set out in the Public Service Employment Act. One of those is that only the qualifications required to perform the duties of a position are to be assessed when a position is being filled. That means the assessment of applicants is based only on the competencies required to do the job, and therefore only information required for the assessment and appointment process is collected from applicants.
Bill C-520 proposes a substantial change to this regime. It would require all applicants for positions in the offices of the agents of Parliament, and not just the successful candidates, to provide information on their past political affiliation as soon as possible in the selection process. The purpose for this requirement is not clear.
Even though it may not be the intention of the bill, asking for information on past political affiliation is at odds with the existing legislation and could lead to a perception that this information may be used in the selection process. The fact that we do not ask for information on political affiliation I believe is essential in ensuring confidence on the part of the public and applicants in the impartiality and fairness of a merit-based appointment system.
[Translation]
Moreover, Bill C-520's requirements apply to all employees, whatever their level and whatever the nature of their duties — regardless of the differential risk that these may present. This may result in challenges for agents of Parliament in recruiting employees.
[English]
Once appointed to the public service, there is already a regime in place to ensure that public servants perform their duties in a politically impartial manner.
First, the Values and Ethics Code for the Public Sector requires that public servants carry out their duties in a non-partisan and impartial manner, and deputy heads, which include seven of the nine agents of Parliament, are responsible for ensuring that the code is implemented effectively in their organizations and they have the tools to take corrective measures as necessary. The Public Service Integrity Commissioner can also conduct an investigation of a serious breach of the code.
Second, there is a regime in place to regulate the political activities of public servants. In 2005, Parliament amended the Public Service Employment Act to recognize the rights of public servants to engage in political activities while maintaining the principle of political impartiality in the public service, which reflects the principles articulated in the Supreme Court of Canada's Osborne decision. Political activities are defined in the Public Service Employment Act as carrying out an activity that supports or opposes a political party or candidate, or seeking nomination as or being a candidate in an election.
This regime is based on a balance between the rights of public servants and their obligations as employees. Our staffing survey indicates that only 4 to 7 per cent of public servants are engaged in non-candidacy political activities, such as placing a sign on their lawn or volunteering for a candidate.
The PSEA also requires employees to seek permission if they wish to be a candidate in a federal, provincial, territorial and municipal election, and it provides authority for the Public Service Commission to grant permission and require the employee to take a leave of absence without pay under certain circumstances. If elected to federal, provincial or territorial office, they cease to become public servants.
Under the PSEA, deputy heads, which include seven of the nine agents of Parliament, are prohibited from engaging in any political activity other than voting, and the other two agents of Parliament have enabling legislation that limits any activities inconsistent with their position.
[Translation]
The PSC may investigate an allegation, from anyone, of improper political activity by a federal public servant and, if the allegation is founded, can take the corrective action that it considers appropriate, up to and including dismissal.
In our experience, there have been few instances of improper political activity, and when those situations have arisen, the system has delivered an appropriate response. The PSC has a robust program that provides guidance and tools to educate employees about their rights and help them make informed decisions.
Moreover, unlike some of its other authorities, which can be delegated, the PSC's authorities related to political activities cannot be delegated.
[English]
Mr. Chair, we are also concerned regarding Bill C-520's different and potentially duplicative system of oversight and compliance and the impact this could have on employees and their rights. The PSEA recognizes the rights of public servants to engage in political activities provided that they do not impair or are perceived to impair their ability to perform their duties in a politically impartial manner. Factors to be considered include the nature of the political activity itself, the employee's duties and the level and visibility of the position.
The federal public service benefits from a workforce hired on merit comprised of engaged citizens with a wide range of backgrounds and experience who, once appointed, must perform their duties in a politically impartial manner.
Mr. Chair, after my colleagues have spoken, I'd be pleased to answer questions.
The Chair: Thank you very much. We'll go on to Mr. Ferguson.
[Translation]
Michael Ferguson, Auditor General of Canada, Office of the Auditor General of Canada: Mr. Chair, thank you for this opportunity to discuss Bill C-520.
[English]
First of all, I'd like to say that at the Office of the Auditor General we are committed to carrying out our duties in a fair, independent and non-partisan manner, and we have processes in place to regularly assess our independence. For these reasons, I would like to clearly say that in my opinion there is nothing in the bill that will further our efforts to operate independently, and I therefore find this bill is unnecessary.
I recently signed a letter along with other agents of Parliament stating that although changes to the bill have addressed some of our earlier concerns, there are outstanding issues that I believe make the bill difficult to understand.
[Translation]
First, the bill refers to the terms "political activities" and "partisan activities," but neither term is defined. The lack of definitions makes interpreting the bill difficult. For example, the purpose of the act as stated in clause 3 seems to imply that partisan activities are allowable as long as conflicts are avoided. However, clause 2(3) says that nothing in the act is to be construed as allowing an employee to engage in political activities.
[English]
Subclause 6(1) of the bill is also difficult to understand. It requires an applicant for employment to provide, as early as possible in the hiring process, a declaration as to whether the applicant has occupied a politically partisan position in the past 10 years, but the bill does not specify what the agent of Parliament should do with this information. Is it supposed to be used somehow in the selection process or is it to be ignored? If we're supposed to ignore the information, then why collect it during the selection process rather than after the selection has been made? If we are supposed to use the information somehow in the selection of a candidate, then this would make us non-compliant with the Public Service Employment Act, which requires us to select candidates based on merit.
[Translation]
Under the Public Service Employment Act, if an individual had declared prior politically partisan positions but, for reasons of merit, was unsuccessful in obtaining a position, that individual could challenge the decision not to hire on the basis that the declaration influenced the hiring process.
I am also concerned with clause 6(2), which says that every person who intends to occupy a politically partisan position while holding a position in the office of an agent of Parliament must provide a written declaration of this intention. This seems to be in direct conflict with clause 2(3), which says that nothing in the act is to be construed as allowing an employee to engage in political activities.
[English]
I have other concerns as well. For example, the bill requires written declarations from all employees indicating any politically partisan positions they occupied within the 10 years prior to joining the office. It's possible that this could result in the disclosure of a position that was held 35 years ago. Furthermore, an employee may no longer support the party for which the employee worked in the past.
[Translation]
Finally, the bill does not specify how long the information should be retained and publicly displayed on the website, or under what circumstances, such as termination of employment, that the information can be removed. Mr. Chair, I hope that my comments will be of assistance to the committee as it undertakes its review of Bill C-520. I would be happy to answer any questions that you may have.
The Chair: Thank you very much, Mr. Ferguson, for your statement. Next, we will hear from Mr. Therrien.
Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Honourable senators, thank you for the invitation to appear before you on the privacy issues related to Bill C-520.
As an agent of Parliament, I am fully committed to the principles of impartiality, independence and political neutrality. I would refer the honourable senators to the joint letter from agents of Parliament to this committee outlining concerns with aspects of the bill and support for the principles of non-partisanship and transparency, with which I agree.
Rather than repeat the substance of that submission, my comments this evening will focus specifically on the privacy issues that arise from the bill. There are three of them, in my view. The first concerns the online publication of an individual's past political association, which has been judicially recognized as constituting sensitive personal information.
The second concerns the indiscriminate application of the mandatory disclosure requirements of the political past of all employees, regardless of their position of influence.
The third pertains to the extensive reporting mandated under the regime for new applicants and particularly for existing employees.
Mr. Chair, when reviewing the privacy implications of proposed government activity, like the bill before you today, the Office of the Privacy Commissioner considers four criteria: the necessity, effectiveness and proportionality of any proposed measure, as well as whether a less privacy-invasive approach exists.
In speaking to these four criteria, I will touch on some of the difficulties already raised by my colleagues. Regarding necessity, the new rules seem generally duplicative. As Ms. Robinson pointed out, numerous measures are already in place to ensure political neutrality. I won't list all of them for the committee, but a number of them exist, including the Value and Ethics Code for the Public Service, as well as the Public Service Employment Act.
[English]
On the question of overall effectiveness, here I would ask what specific goal is advanced by the new regime. Candidates for positions in the offices of agents of Parliaments must, under this bill, declare their past political activities, but what are agents to do with this information? It is not clear. Put another way, for what specific problem is this legislation a remedy? It is difficult to assess effectiveness without clarity on these points.
In addition, still on the question of effectiveness, there are certain technical flaws that the Auditor General has just referred to. These flaws make the interpretation of the bill and its application, if adopted, unclear. From a privacy perspective, this lack of clarity brings into question the effectiveness of the bill in question.
That leads me to another aspect of the bill, namely, its proportionality. The public disclosure requirement for employees seems over-broad given its universal application to all staff no matter their relative level, position or specific influence on decision making as individuals. For example, should it apply to mailroom staff in the same way it applies to senior management?
In addition, without clarity regarding terms like "partisan activity," applicants for positions within the offices of agents of Parliament may feel that they are under an obligation to report activities that are not meant to be covered and that may be Charter protected. For instance, could partisan activity be interpreted as applying to more than just paid employees of political parties and apply to volunteers? Could applicants, for instance, feel the need to declare mere past membership in a political party? This ambiguity in the law could have the unintended consequence of deterring political participation, which is a constitutionally protected right.
Lastly, I would note that the extended reporting period applies unevenly to existing employees through the transitional provisions set out in clause 8 of the bill. By this I mean that some existing employees may have to disclose partisan activity that took place 20 or 30 years ago, when they were originally hired into the Federal Public Service. This would be in contrast to a new applicant who would be subject to public disclosure for a period of 10 years before his application.
Thank you, members of the committee and Mr. Chair. I would, of course, welcome questions after my colleagues have completed their remarks.
The Chair: Thank you very much, Mr. Therrien. You raise a number of very interesting, unanswered questions. I appreciate you for doing that.
Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages: Mr. Chair, honourable committee members, good evening. Thank you for this opportunity to speak to you on Bill C-520.
To begin with, I'd like to state that I fully endorse the views expressed in the letter that we jointly signed as agents of Parliament. My main concern is the apparent conflict between this bill and the Public Service Employment Act and the Values and Ethics Code for the Public Sector. I'm also concerned about the bill's impact on the hiring process and issues of privacy.
[Translation]
On a personal note, let me say that during the years I spent as a journalist, I was very aware of the importance not only of fairness, but also of the appearance of fairness. Throughout my career, I covered governments of very different political stripes and I'm proud that I had a reputation of treating all of them fairly. At the same time, I have always had great respect for partisan activity as a form of public service. In many cases, people are drawn to partisan activity because they want to improve society.
[English]
In many cases, if not all cases, people are drawn to partisan activity because they want to improve society. After working for a minister or an MP, many choose to join the public service. I've always considered this to be a good thing. Some of Canada's most distinguished deputy ministers first came to Ottawa as political aides. I'm concerned that this bill suggests that partisan experience is something to be ashamed of, a liability rather than an asset.
[Translation]
In his appearance before a House of Commons committee, the member for York Centre said that agents of Parliament "sit in judgment on members of Parliament." I would say that the opposite of what Mr. Adler said is true; members of Parliament sit in judgment of me. They questioned me on my qualifications for the job before voting on my appointment and can summon me to appear, cross-examine me, criticize me and vote to have me dismissed. I report to you on whether federal institutions have lived up to their responsibilities under the act.
[English]
As Commissioner of Official Languages, it's my job to ensure that my staff interprets the Official Languages Act in an appropriate fashion, neither too broadly nor too narrowly but, as the Supreme Court has put it, in a generous, purposive fashion. As an agent of Parliament, I can be called upon at any time to justify the positions I've taken.
In carrying out this responsibility for eight years, I have to say that partisanship has never been a factor in our work. There have been vigorous internal discussions over many issues: whether or not a complaint is admissible, what recommendations would be most effective and whether or not I should intervene in a court case, among other examples. I'm proud of the dedication my staff consistently demonstrates to the mandate.
[Translation]
People work in the Office of the Commissioner of Official Languages because they are committed to the principles embodied in the act, and I see that commitment every day. Not once have I felt that these internal discussions were affected by partisan considerations. On the contrary, they were honest, candid exchanges of opinion on how the act should be interpreted and applied, how we should meet my responsibilities as commissioner and how we could achieve positive results. Ultimately, the final decision on these questions is mine, and mine alone.
[English]
As a small organization, we need people with a wide variety of experience, whether in regions, investigations, policy, corporate services, legal work, communications or parliamentary affairs. Political experience, in my view, is an asset rather than a liability.
On a final note, let me add something as to why previous partisan activity does not affect our mandates. Each one of our offices was created because parliamentarians decided that there were Canadian values that transcended partisan divides and the government of the day. While governments and policies change, our mandates and the fundamental values we protect and promote do not.
[Translation]
There are no partisan audits; there are audits, governed by professional auditing standards. There are no partisan elections; there are fair elections, governed by our democratic principles. And there is no partisan interpretation of the Official Languages Act; the act speaks for itself. I report to Parliament on whether or not the institutions subject to the act fulfilled their obligations — not in any case based on partisan considerations.
[English]
If a parliamentarian feels that my decisions have been or appear to have been affected by partisan considerations, then I would be happy to appear before the relevant committee to explain my reasoning.
Thank you for your attention. I would be glad to answer any question, and with your permission, Mr. Chair, I'd like to table the code of conduct of our organization, in both languages, which addresses issues of partisanship.
The Chair: Thank you. We'll accept that. We appreciate you bringing that document along.
Before I go to Madam Legault, you made reference to the letter that had been sent. I made reference to that here yesterday when we had before us the sponsor of the bill. That letter has been received and has become the record of this committee, and we thank you for sending that along to us.
Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada: Honourable senators, thank you very much for the opportunity to speak to Bill C-520 this evening.
[Translation]
Thank you for the opportunity to speak to Bill C-520. In order to fully assess the impact of this bill and understand the proportionality of the legislation, as my colleague mentioned, it is important to understand the mandate and operational reality of each agent of Parliament.
The Access to Information Act requires the Information Commissioner to engage exclusively in the duties conferred on the Office of the Information Commissioner. The act prohibits the Information Commissioner from holding any other office or engaging in any other employment. The same restrictions apply to the Assistant Information Commissioner. All other employees in my office are public servants. And, as such, they are governed by the rules of the Public Service Employment Act, as described by Ms. Robinson, President of the Public Service Commission. My employees must adhere to the Values and Ethics Code for the Public Sector as well as to my office's code of values and ethics. It is a condition of employment to carry out their functions in a non-partisan manner.
In addition, anyone in my office who conducts investigations must identify any real or potential conflicts of interest upon being assigned to the investigation file. If a conflict is identified, the file gets immediately reassigned.
As Information Commissioner, I investigate complaints in respect of any matter relating to requesting or obtaining access to records under the act. I delegate my authority to the investigators in my office. Under this explicit delegation of authority, very few of them have final decision-making authority.
Since 2009, my team and I have completed over 10,000 investigations. All of our investigative findings are based on facts and the application of the act. In the over 30-year history of the office, not one of our investigations has been found by the Federal Court to be biased.
Further to the points raised by my colleagues, it is noteworthy that the act does not apply to parliamentarians; nor does it apply to ministers' offices. It does not apply to the Senate or the House of Commons.
As part of my review of this bill, I consulted my employees to understand their perspective on how this bill might affect them. The majority expressed serious concerns about the bill. In their view, the bill could impede their ability to carry out their duties, safeguard the integrity of their investigations and protect their reputation. Some stated that the bill might have affected their decision to apply for a position in my office.
Some have also stated that the passage of the bill may affect their decision to remain at the office. I am obviously very concerned about the impact this bill may have on my ability to recruit and retain the best and brightest.
[English]
The bill is being supported as a means to increase transparency and accountability. I, of course, am a champion of transparency; however, being so does not mean that I recommend that all information be disclosed in all circumstances. As the Supreme Court of Canada stated in a very recent decision:
Access to information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions.
However, as with all rights recognized in law, the right of access to information is not unbounded. All Canadian access to information statutes balance access to government information with the protection of other interests that would be adversely affected by otherwise unbridled disclosure of such information.
The interest that would be adversely affected by C-520 is the protection of personal information of employees in the offices of agents of Parliament. The protection of personal information is an exemption to disclosure under the Access to Information Act. My preliminary review of the bill leads me to believe that most of the personal information to be disclosed under Bill C-520 likely would be protected otherwise under the Access to Information Act.
The stated purpose of the bill is to prevent conflicts that could occur or could be perceived to occur between the employees' past or future partisan activities and official duties and responsibilities of these employees working in our offices. In reviewing the bill many times, Mr. Chair, the only conclusion I can come to is that past political or partisan activity could be used to assert the existence of a possible bias in the conduct of our investigations or audits. If the reason for the collection and publication of this personal information is to assert bias, then that raises very serious issues. It could affect the integrity of our investigations; it would politicize our investigations; and it would definitely undermine our effectiveness as agents of Parliament.
Lastly, some of you asked yesterday questions about the constitutionality of this bill given its potential implications for the protection of privacy rights and the rights of freedom of expression and freedom of association. These are, in my view, excellent questions. Frankly, I am not sure how one can get any level of assurance at this stage that the impact on these rights has been properly assessed in light of the various mandates of each of the agents, the various functions that our employees fulfill, the necessity of this bill to address any concerns where in fact none have been identified, and whether the bill amounts to reasonable limits on the rights of our employees.
Mr. Chair, I will be more than happy to answer your questions. Of course, I stand committed to assist the committee in its review of this bill.
The Chair: Thank you. Before I go to my list of senators who have expressed an interest in clarification or asking questions, it is important that we clarify a point made by Mr. Fraser.
Mr. Fraser, you indicated that the proponent of this bill said that agents of Parliament sit in judgment of members of Parliament. This committee has done two studies of officers or agents of Parliament, and the links to those two studies in the reports have been circulated and are available on our website for anybody to see. It is important that you know that this committee and the Senate very much appreciate the work done by officers and agents of Parliament. You help us to do our job, and we understand that. We held those hearings previously to see what we could do to ensure that you could function effectively and independently. I just want to clarify that since you had made note of that. I didn't want the record to suggest that we were supporting that comment as it is the contrary.
Mr. Fraser: Thank you, Mr. Chair.
The Chair: We will begin with Senator Eaton from Toronto.
Senator Eaton: Ms. Robinson, you talked about self-regulation and political impartiality. Can you give me examples of how you do this?
Ms. Robinson: Yes, thank you for the question. There are two types of political activities for public servants regulated by the commission. The first type is where public servants want to run for office. In that case, they have to come to the commission and seek permission to do so. In some circumstances, we would either apply conditions — or normally people would go on a leave of absence. As I said, if they're elected at the federal-provincial-territorial level, they would resign from their position.
The other type of political activity is what we refer to as non-candidacy type, where a public servant might want to conduct an activity for or against a political party. That would include things like putting a sign on their lawn or perhaps supporting someone in a campaign. Public servants in that case make a decision on their own as to whether they will engage in those political activities, but there's a broad network of support available across the government. We have many tools on our website and we have videos. We have a decision-making tool that helps them to decide whether that is appropriate, for example, whether it would impair their ability.
Senator Eaton: Does that depend on the function of their job?
Ms. Robinson: There is a three-part test: the nature of the activity, the level of visibility of their position and the nature of their duties. We examine things such as what kind of decision-making authority they would have and how visible they are to the public — those sorts of factors. Each situation has to be looked at on a case-by-case basis.
Each department has a representative that helps the employee come to the right decision. The goal is to find the balance between their right to that expression and the protection of the non-partisan nature of the public service.
From time to time, we will receive a complaint. We have the authority to investigate, and we can take corrective measures if necessary. On the non-candidacy side, since 2005 there have been only five cases.
Senator Eaton: Five complaints?
Ms. Robinson: No, there have been more complaints but only five cases where we found that public servants had engaged in inappropriate political activities. We then take the necessary corrective measures. With a population of 230,000 public servants over some nine or ten years, there have been very few cases.
Senator Eaton: I guess I find it difficult. I would have thought, and this is probably my ignorance, that as commissioners, or bosses of your shops, it would be more important for you to be non-political than for your employees. Am I crazy to think that? I'm sure you all are non-political but —
Mr. Fraser: That is correct, and we are forbidden from engaging in any political activity other than voting. That's made very clear.
Senator Eaton: Thank you.
The Chair: I think the question begging to be asked is why this bill was amended to exclude you from the application of the legislation. We understand that you had requested that, but can you tell us the reason for amending the act?
Ms. Legault: I can answer. What I recall is because we're actually not allowed to do so. There was a conflict because the previous version of the bill almost implied that we could but that we'd have to make a declaration about it, when in fact we're prohibited from doing that. It really made no sense because I'm prohibited in my own legislation, but I believe — and Ms. Robinson can comment on that — also as the head of a public office or as senior public servants we're also prohibited, which was also based on the Osborne decision in 1991.
The Chair: I understand, but this isn't authorizing you to participate; this just wants a declaration from you as to your past political activities. Why shouldn't that apply to you the same way it applies to everybody that is in your employ?
Ms. Legault: I don't know why it was amended that way. I know why it was amended that we could not make a declaration if we intended to because it made no sense because we can't anyway. But why the past activity, I don't know.
Senator Eaton: When you were hired for the job, did they ask whether you were formerly a member of the NDP, did you canvass for the Liberal Party, are you a member of the Conservative Party, do you give them money? Were you asked any of those questions?
Ms. Legault: Certainly it wasn't asked of me. They did get a CV. It was clear I never engaged in partisan political activity. But former Information Commissioner John Reid was a long-standing member of Parliament for the Liberal Party before he was appointed Information Commissioner.
I don't know, again, to my colleague's point, whether that necessarily means that the person will act in a partisan manner once they are appointed to the position.
It begs the question: Is that what this bill is about? Is that what it means? If you have participated in past political and partisan activity, does that mean that as a public servant you cannot act in a non-partisan manner? That really is the question of the bill.
I personally don't have an answer to that. I don't understand that, because people come to these offices and they have an obligation to act in a non-partisan matter. My decisions can be not only criticized and reviewed by parliamentarians, but they can be reviewed in Federal Court. I make decisions which are reviewable on the basis of bias or apprehension of bias in the Federal Court as well. That's the normal recourse for our decisions.
As far as public servants are concerned, if they act in a partisan manner they can be fired or certainly disciplined. That's the condition of their employment.
The Chair: Mr. Ferguson, you wished to comment on that?
Mr. Ferguson: Mr. Chair, I was just going to refer to your question about the changes that were made. First, in the transitional provisions right now, it says:
Any person who, on the day on which this Act comes into force, occupies a position in the office of an agent of Parliament must, within 30 days after the coming into force of this Act, comply with the requirements set out in section 6.
I would consider myself to be somebody who occupies a position within the office, so I think that it does continue to apply to me.
I think what was changed was that the wording in former subclause 6(1) was taken out. As stated before, it said, "Every agent of Parliament who intends to occupy a politically partisan position," but given the fact that, as Mr. Fraser said, we aren't allowed to occupy any politically partisan position, it made no sense for there to be a section in the act that referred to us having an intention to occupy. What was taken out was all of the reference to an agent of Parliament intending to occupy a politically partisan position.
Now when I read the transition provisions, it doesn't say, "Any person who occupies a position in the office of an agent of Parliament except the agent." It just says, "Any person who . . . occupies a position in the office of an agent of Parliament. . . ." So I would assume that means it would apply to me as well.
The Chair: Are you all of the same view?
Mr. Fraser: Just to come back to Senator Eaton's question, certainly people were free to ask me if I had belonged when I appeared before a parliamentary committee and before the Senate Committee of the Whole. Since I had spent between 35 and 40 years as a journalist, nobody bothered asking me that question. There have been previous commissioners — not of my organization but of other organizations — who were asked and had been involved in a political party and responded as such and were confirmed in their position.
The Chair: Senator Eaton, have you concluded your line of questioning?
Senator Eaton: Yes, thank you very much.
[Translation]
Senator Hervieux-Payette: I have to say how impressive this is; it's not every day we see all of you together like this. In my view, the functions you perform are vital to our democracy, and I appreciate your consideration and, especially, your consultation in this matter. At the end of the day, like us, you are trying to figure out the purpose of the bill, which I have yet to put my finger on. It is akin to asking someone whether they follow a religion and, if so, which one, and then posting the information on the Internet. To my mind, that is completely irrelevant. I was born to Catholic parents. I am Catholic. So what?
I am curious as to whether you consulted outside legal counsel on the legality of the measures in the bill. As I see it, the legislation raises a major constitutional question regarding an individual's freedom to exercise their rights in a democratic system. Surely, there are a great many judges who would admit to having engaged in political activities. If we were to take a closer look at courts across the country, we would find many such judges. A process for appointing judges exists, however. They undergo questioning, and their colleagues as well as everyone involved in the selection process examine and assess their skills and qualifications.
So far, I cannot point to any terrible failings in our justice system, because these people are responsible for enforcing the laws. I am not trying to say that they are above you, but you, yourselves, are subject to their authority.
I would like to know whether the unions are in favour of possible challenges to the legislation by applicants. I consider it a very aggressive measure to tell someone that their declaration is going to be posted on the website; it carries a stigma, as though the individual had done something wrong by engaging in political activities. I have spent 30 years working in the political realm and I don't regret it one bit.
I am telling you this because I think it's important to know whether it worries you or not. You have many employees; this legislation would affect all of your organizations and would be a bad premise to start from. What's more, as parliamentarians, we wouldn't look too smart if the legislation were struck down by the Supreme Court further to a challenge.
As far as your respective activities are concerned, does this issue worry you?
Mr. Fraser: Yes, I find it especially worrisome. Mechanisms have been put in place for applicants who are not selected for the position, allowing them to appeal the decision and to request the notes that were taken at the time of their application.
If, during the application process, a person declares that they had previously worked for a minister, a member of Parliament or a party leader, it would open the door to an appeal, even if the selection of the successful applicant had nothing at all to do with that.
What's more, having just one employee affiliated with a certain political party may give rise to a temptation, if not pressure, to seek out someone with a different political affiliation in order to balance out the mix and have representatives from all political parties shown on the website. That would seriously interfere with the merit principle.
In terms of consulting with legal experts, I asked our own counsel to provide their opinion; they worked together on a joint analysis. As far as I know, we did not seek out a legal opinion from private counsel. We did not hire a private lawyer to examine the issue.
Senator Hervieux-Payette: I have a second question for you. I want to start by pointing out that when a private member's bill, like Bill C-520, is considered, it is not subject to the same procedure as a bill introduced by members of the executive, namely, the test for constitutional validity. So there is one less step in the process, and that troubles me.
I have a little anecdote for the official from the Public Service Commission of Canada. I was the head organizer in Quebec during the election that Stéphane Dion ran in. There was another candidate running in that election; he was from a department. I must say he had a devil of a time. Inside his own department, they made it difficult for him every step of the way. During the candidate selection process, he did not get his nomination papers until the last minute, so he didn't have time to prepare but he was willing to accept all of the conditions imposed on him.
Right now, then, under the existing legislation, what mechanism exists to assist those who want to serve Canadians in the House of Commons? Are you aware of any obstacles that exist within the organizations you oversee, be they departments or corporations? Public servants have a difficult time because they have fewer rights than regular citizens.
Ms. Robinson: Thank you very much for the question.
[English]
In the system that the commission runs, it applies to employees under the Public Service Employment Act. For those employees, when they want to run in an election, they have to come to the commission and seek permission. We recently put in a service standard of 30 days, and we work hard to improve that time frame.
[Translation]
We have to make sure that the decision is made at the right time for those citizens.
[English]
We are always working with people to inform public servants about the requirements in order to gain permission from the commission to run in an election, and then we work individually with public servants so that they have all of that information. As I mentioned before, we give them tools to help make decisions about other types of political activities in which they engage.
The legislation and our regime is designed to provide that balance, to respect the rights articulated by the Supreme Court in the Osborne decision, while ensuring that the public service operates in a non-partisan manner.
[Translation]
Hence the importance of the entire appointment process.
[English]
According to the commission, it's okay if people come into the public service with previous political experience, because we rely on the appointment mechanism itself to ensure that when we make decisions about who to appoint, we assess and examine the qualifications only. We do not look at the political affiliation. If somebody worked, for example, for a party in a communications function, we would look at the communications skills, and those are the skills we're looking to bring into the public service.
So it's critical, as I said in my opening remarks, that what we don't ask for is as important as what we do ask for, and we only ask for information about the qualifications necessary to do the job. Once people come in, everyone who enters the public service is subject to the same regime. They must respect the values of a code of ethics. They must conduct themselves in a non-partisan manner. Then the commission has the ability to regulate the political activities of public servants in a manner that tries to find that balance between their rights and their obligations.
Ms. Legault: What the bill really does is creates a double standard for the public servants that work in our offices and the public servants that work in other areas of the federal government. So it clearly creates a double standard.
To go to your question as to whether the bill would be challenged, what if somebody says, "I don't want to have my personal information published"? It's their personal information. What if they say, "I don't want to have my personal information published because I think it contravenes my rights"? I think it's a very fair and valid thing for this public servant to say, because they have the job; they get the job on the merit; and I think it's very open to them to challenge the legality of posting this information.
[Translation]
Senator Hervieux-Payette: I have another short question for you. Did you all give similar presentations on this bill to the House? There are five of you. Did the five of you each give a presentation laying out the same arguments you did this evening?
Mr. Therrien: Most of the agents gave a presentation. I was not the commissioner, but my predecessor was not among that group of agents. Most of my colleagues, however, were there and did make such submissions.
Mr. Fraser: I wasn't able to participate because the hearings ended before I was able to appear. I did, however, submit a letter whose content is strikingly similar to the statement I made before this committee.
Ms. Legault: The same thing happened to us. We didn't have the opportunity to present our views to the committee, except in the form of a letter.
[English]
Ms. Robinson: I was not asked to appear before that committee, but I did write to the committee and express the same concerns that I've expressed to this committee today.
Mr. Ferguson: I did appear before the House of Commons committee.
Senator Hervieux-Payette: With the same arguments?
Mr. Ferguson: Well, at that time there were other aspects of the bill that concerned us, the idea that agents of Parliament could intend to occupy a politically partisan post, which made no sense. There were also aspects of the bill that were talking about doing an inquiry if there were complaints.
So I think most of the things we focused on at that time were those aspects of the bill which have since been dealt with. I think there are 10 clauses in the bill, and when I go through it, I find what I would consider fairly serious problems with probably 6 or 7 of the 10 clauses.
Senator Tannas: Thank you very much for your testimony here today. I'd like to spend my time asking Mr. Ferguson to maybe clear the air a bit, if it needs clearing.
It's no secret that you and your department are heavily involved right now in the affairs of the Senate through your audit, and you're here this evening asking senators to make a decision in a certain fashion on legislation. I'm just curious if you could take us through, if indeed you did go through a thought process — granted, you're not here by yourself; you're here with your colleagues. But could you tell us your thought process that brought you to feel that you and we would be comfortable with your presence here?
The Chair: Mr. Ferguson, before you go on, we asked you to be here to deal with this particular bill. That question may stray somewhat from this particular bill, and I leave it to you whether you wish to respond or not.
Mr. Ferguson: Thank you, Mr. Chair. Certainly that was going to be the first part of my response. When the idea of having this hearing was put forward, I said I would be willing to attend, but obviously I'm here at the pleasure of the committee.
I think, though, it's not uncommon with the work that we do — probably the work we all do — that we end up looking at things that relate to departments headed up by ministers and then we appear before committees.
I expect what will happen is that the committee will take my comments into consideration and weigh them with the comments of the other agents of Parliament and determine whether my comments seem to be consistent with the comments of the other agents of Parliament and can dismiss or use my comments as the committee wishes.
[Translation]
Senator Bellemare: I think I know what you will answer, but I am going to ask the question anyway. Do you think this bill is amendable? And if so, how?
Ms. Legault: I don't think it can be amended. My recommendation would be not to pass it, simply because I still have no idea what purpose it serves, firstly. Not only does it establish a wholly duplicative system, but it also contains conflicting information.
Secondly, it raises potential constitutional concerns that have not been addressed or studied, and the consequences of those concerns are not known.
My colleagues may disagree, but it has been clear to me since the beginning that this bill is not amendable.
Mr. Fraser: As the bill is currently written, I fail to see how this clause or that clause could be amended. If, however, we are convinced that partisan involvement is a problem among our employees, we could, for instance, ensure that our code of conduct was posted on our website and that all employees were required to sign the code, which they are already following and which constitutes an operational policy.
As I said, though, that is not a concern I have had at all in the course of performing my duties. The discussions in our office focus, instead, on the purpose of the act.
The purpose of the current act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society;
and lastly
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Within the office, we have all kinds of discussions to try to better achieve the objectives of the act. But I fail to see how a partisan distinction could affect how the act is interpreted. Some people have a more rigid approach, while others are more flexible, but I am the one who decides what action we should take.
As agents of Parliament, we are your agents. In your wisdom, you can decide whether there is a problem that needs fixing under this bill. But I do not believe that a real problem exists, as the bill is currently drafted.
Mr. Therrien: I would add a few nuances but stay more or less in the same vein. From a privacy standpoint, one of the criteria that has to be examined when determining whether an administrative measure or piece of legislation respects privacy rights is whether a less privacy-invasive approach is possible, while the measure still achieves its objectives.
I would agree with Ms. Legault and say that we are starting from the premise that infringements on privacy rights could conceivably be reduced, for instance, by limiting the scope of the legislation to employees with genuine decision-making authority in the performance of their duties. That could address some of the privacy-related problems. Usually, however, when we conduct our analysis and endeavour to minimize privacy-related problems, the question we ask is whether the desired objectives can be achieved in a less privacy-invasive manner.
So, yes, it is possible to adopt a less privacy-invasive approach, for instance, in the way I suggested, but the overriding idea is always to achieve the purpose of the legislation. And in this case, we are still wondering what that purpose is.
Basically, I would echo the comments made by my colleague and say that, even if it were possible to make certain amendments to mitigate the privacy-related problems, the fundamental problem remains. What purpose does the bill serve, beyond that of the current regime set out in the Public Service Employment Act, the values and ethics code and so forth.
[English]
Mr. Ferguson: Certainly, I think I agree with everything that has been said.
Perhaps one thing that I would nuance a little is that I actually think the purpose of this bill is fairly clear. Clause 3 states what the purpose of the act is. The problem is none of the rest of the bill actually achieves anything to do with that purpose.
So if I were going to start all over again, if my goal was to try to save a bill in some form, I would go back to that purpose and then I would look at the requirements under the current regime under the Public Service Employment Act and see what additional safeguards were desired for people that work in an office of an agent of Parliament and put those in place.
The purpose of the bill is "to avoid conflicts that are likely to arise or be perceived to arise between partisan activities and the official duties and responsibilities of any person who works in the office of an agent of Parliament." I can't for the life of me figure out how disclosing the fact that somebody worked in a political office perhaps 20 or 25 years ago would achieve the purpose. If I were going to start all over again, I'd keep the purpose and get rid of everything else.
Ms. Robinson: I would agree with the comments from my colleagues but also say that the Public Service Commission is not subject to the bill, but we administer the Public Service Employment Act. Our view is that having two parallel regimes has a risk of causing a lot of confusion and could weaken the existing regime. As I noted, I'm deeply concerned about the potential impact on merit and Canadians' confidence that the appointments are free from political influence.
I would go further and say even posting information about political affiliation on the Internet could lead Canadians to think that affiliation actually played a role in their hiring and in the conduct of their duties once hired, therefore undermining the confidence in a non-partisan public service. I'm at a loss how that could be rectified in the bill.
Senator L. Smith: Thank you, Mr. Ferguson, for your comment.
I was just whipping through the Public Service Employment Act because it's evident that all of you are unified in your response to this particular bill. A question I had relates to Part 4 of the act and clause 54, which reads:
A person appointed or deployed from outside that part of the public service to which the Commission has exclusive authority to make appointments shall take and subscribe an oath or solemn affirmation. . . .
Do people covered by the Public Service Employment Act have to make any form of an oath or affirmation in terms of the integrity with which they're going to work? Maybe I should ask the question, is there something that can be done? Because going back to what the Auditor General discussed in terms of studying the purpose and how you could improve it if you're going to try to make a bill up, is there something that could be done to the Public Service Employment Act dealing with individuals who are employees that would strengthen the act and the commitment and integrity of people at the start and hopefully continuing through the process of their employment?
Ms. Robinson: Thank you for the question. As noted, I think the current regime is sufficiently robust. As you noted in the act, there is a requirement for an oath. Also, once people are hired, in their letter of offer, typically there is a requirement and people must sign on to the code of values and ethics. In that code, it says all public servants must conduct themselves in a non-partisan manner. If they don't do that, then they're subject to discipline by their deputy head or subject to investigation in some cases by the Integrity Commissioner.
The Public Service Commission has additional powers in the case of improper political activities by a public servant. That's something we've overseen for the past 10 years, and there have been only a few cases where we've seen problems. We feel that we have the powers, when necessary, both to identify and to rectify those.
Senator L. Smith: You've been before us before, and we're very appreciative of that fact. You had mentioned the types of investigations or complaints and the number of complaints versus the number of employees that exist within the public service.
Just a simple question: Do you feel that there could be improvements through your investigative process that could — I'm not saying make you a better watchdog or police person — improve the system so that the integrity of the system would be only reinforced and made better?
Ms. Robinson: In terms of our powers to investigate, I think we feel we have sufficient powers. Our powers to take corrective measures are fairly broad, and they include up to dismissal of a public servant.
In terms of the powers of our investigators, we have extensive powers. We can issue subpoenas, and we have the normal powers that investigators have under the Inquiries Act. We feel we have what we need to conduct those investigations.
At this point, I actually don't see a loophole with respect to that aspect of our authorities, either in the area of political activities or the area where we do most of our investigations, which is not in this area but rather in the area of staffing transactions, where there is concern. I think I've mentioned to this committee before that sometimes we find things like fraud in application processes or tailoring of application processes, that type of thing. We have the powers as well to correct those instances.
Senator L. Smith: Last little question: Do you have ongoing relationships with the other agents of Parliament in exchanging information about the types of situations that you talk about or study? They may not be present within the other areas or departments, but do you have that interpersonal relationship so that you're current from the top people that are equivalent to you within the government bureaucracy so that you can be better informed?
Ms. Robinson: That's a great question. Thank you. One of the practices we have at the commission is an outreach function and a policy support function, so both the agents and their staff can get information about how the Public Service Employment Act should operate.
As well, every time a new deputy head is delegated authority from the commission, I will meet with that deputy head and discuss what their obligations are vis-à-vis the Public Service Employment Act and make it clear that while we regulate the staffing authority and the non-partisan elements of that, we're there to support them and ensure that they have the information they need to properly comply with the act.
I maintain relationships with everyone we've appointed authority to, so that's over 80 deputy heads in the federal public service. It's critical to my ability to operate effectively.
Senator L. Smith: I wasn't trying to get the group off the subject, but I thought it might be helpful to discuss that. Thank you.
[Translation]
Senator Chaput: When the bill's sponsor appeared before the committee, I asked him for examples of specific problems or situations that had arisen and that his bill sought to rectify. He was unable to give me examples of any such situations. He told me he was trying to prevent them from happening. And when I asked him for examples of situations that could possibly arise, he still could not give me a specific answer. He spoke in general terms. What I gathered, then, was that he had no specific cases in mind and that his bill was simply a just-in-case measure aimed at preventing God knows what.
I had two questions. One of my colleagues already asked the first one, and you answered it. It was whether the bill could be amended in order to make it acceptable, useful and, perhaps, necessary. I think you answered that question.
My second question is simple. Do you think the requirement of declaring one's involvement in political or partisan activities in the past 10 years and having that information posted online could deter first-rate people from applying for a position in the office of an agent of Parliament?
Ms. Legault: As I mentioned in my opening statement, when the bill was introduced, I asked my employees that question. That was indeed one of the concerns they expressed. Some of them said it would factor into their decision making when applying for a position or choosing whether to remain in their current position at the office. They were worried it could be used as justification for a witch hunt if it were ever alleged that they had demonstrated bias when investigating a file because they had engaged in some political activity in the past. That was a concern they had.
Mr. Fraser: I didn't conduct a survey, like Ms. Legault, but this does worry me. I see incredibly talented individuals in every party. Some were former staffers in a member of Parliament's or minister's office. One person, in particular, comes to mind; he is now a public servant and I would have very much liked to hire him. If he thought that his partisan involvement would follow him for the rest of his career, he would have gone somewhere else.
Mr. Therrien: There is absolutely no doubt that it would cause some people not to apply for a position. I just want to reiterate that the information in question, the declaration that would be posted online for anyone to see, concerns an individual's political views. We are talking about personal and highly sensitive information. Canadians vote by secret ballot. That is information they do not have to disclose. That requirement would definitely deter some people from applying. I have absolutely no doubt that we would miss out on some terrific applicants for that reason.
[English]
Mr. Ferguson: In our situation, we are a shop of primarily accountants, and I think there are lots of accountants who don't get involved in political activity. It would have some impact on us. I don't think it would have a huge impact.
I worry about a couple of things. In fact, it possibly could create an incentive not to disclose. People wanted the job, and now they know this is going to end up on a website. I would refer to it almost as a metaphorical tattoo because nothing in the legislation says that it can ever be removed. Because of that, there may be an incentive for people who, when they should disclose something when we undertake an audit, or whatever, that they worked in a particular area, maybe they would have an incentive not to disclose now because it is something that would be public. That's where I would be more worried about it. It would have some impact on our hiring, but it wouldn't be as big an impact as perhaps for some of the other agents.
[Translation]
Ms. Robinson: I agree that it could pose a problem.
[English]
We do mobility studies of people across the public service. We see in many occupations that there is a great deal of mobility between departments. Often I hear from the smaller entities like the agents of Parliament that because they're smaller, sometimes they have a harder time attracting certain types of employees, particularly in the administrative function.
[Translation]
Bigger departments may have a greater ability to advertise. For that reason, I think it could have a negative impact.
Senator Eaton: I invite all of you to respond to my question.
[English]
I was wondering if it wouldn't put you in an intolerable position when hiring people because of human nature. If you were NDP or Green Party and somebody came and disclosed their political affiliation, you might be tempted to overlook what you so rightly brought up as being merit-based system. You might think, "Oh, this is a lovely person; they vote the same way I do." Or you might think, "Gee, there's a Conservative government in power, so maybe I want to do a good thing and I will find other Conservatives." Doesn't it put you in a very difficult position, to not take their political views or political activities? It is much easier if you don't know and if you just go on their intellectual and work experience, rather than being coloured by it because you canvassed the same riding last time.
Ms. Legault: Let me give you a very specific example. I don't think it is a surprise to anyone around the table that in the world of access to information it is not uncommon to get a complaint from the opposition parties. What's been happening in recent years with the advent of social media is that a lot of the time the complaint letter is actually posted on social media. You see, I have confidential obligations. If the complaint comes to our office, none of it is disclosed, so nobody knows who is complaining against some decisions.
But what has been happening in recent times is people complain and they put their complaint letter on social media. What happens if I want to assign this particular investigation? I get a complaint letter from the Liberal Party or the New Democratic Party and it is posted, so everybody knows that this particular complaint comes from the opposition. I want to assign this file to someone who has had to post on the website that this person previously worked for a member of the Conservative Party. What does that mean? Can the person say, "I do not want this investigator on my file because this person is someone who used to work for the Conservative Party?" What if they make these statements publicly? I mean, at that point, I cannot disclose anything about this investigation. I have strict confidentiality obligations under the legislation.
But this aura of potential partisanship is now out there against this employee. There is no recourse for this employee and they cannot say anything about the investigation.
What if it's the opposite? It's somebody who has a past with the NDP and then the government says, "No, you cannot have this person with this past political affiliation doing this investigation because they're going to be biased against the government."
Pragmatically, given the current context, that's what I think the result of this bill could be for the work of my office. I think if that were the case, I have very strong beliefs about the potential impact of this bill on the work for my office. This is what my staff, who conduct investigations, are concerned about because as you all very well know, as soon as you post on social media, it doesn't matter what happens at the end of an investigation. Once you occupy the social media, that's almost the reality, regardless of what one can say.
Whatever way it can be — whether it is a past partisan from the government or the opposition — you can't win. Right? Allegations can be made and cannot be disproved. I think it affects the investigation, the employees and the real oversight work that my office does. I think that's the real problem that this bill can create, certainly for my office.
Mr. Fraser: I would agree with everything that Madam Legault said. The instantaneous nature of electronic communication that means that we already have a substantial challenge given that our preliminary reports go out to the complainant and to the institution. Then we ask them for comments and we will often revise after having those comments.
The complainants will sometimes, within milliseconds, give the preliminary report to the media, not just social media but traditional media. So we already have to manage the unhappiness of institutions when something is on CBC/Radio-Canada before it has been printed out by the deputy minister's secretary to get it up to his office. It's already on the news. They complain, feeling that we have given it to the complainant first. We haven't given it to the complainant first. We have taken some care to make sure that it goes out at the same time. So we're already vulnerable to this speedup of communications. But if we were also that much more vulnerable to challenge because people were immediately looking to see from the preliminary letter where it says if you have any questions, please contact the investigator, and somebody checks our website to see that the investigator has previous political experience, that would raise all the complications that Madam Legault has mentioned.
Ms. Robinson: Maybe if I could just add, Mr. Chair, that's the reason why the commission is putting forward the argument that it's critical that the appointment process remain the way it is. It is just as important what we don't ask for, as what we do ask for, and we only ask information about qualifications.
[Translation]
Senator Bellemare: My question is along the same lines as Senator Chaput's. I know it's a matter of opinion, but I am going to ask it anyway. Do you think this sort of legislation sends a positive or negative message to young people who might want to work in the office of a senator or minister, or become politically active?
Mr. Fraser: I have always considered the experience of working in a senator's, MP's or minister's office extremely valuable. I have been sorry to see the roadblocks that crop up when these individuals try to enter the public service. Now these people tend to go to work in a minister's or member of Parliament's office, not with the intention of later joining the public service but, instead, with the intention of becoming a lobbyist and cashing in, so to speak, on what they learned while working in that office.
I do believe that it will erect another roadblock for those who acquire experience in public life, in the service of Canadians and in public policy, experience that is an asset to society and to the work we do.
[English]
The Chair: Ms. Robinson, I'm going to ask you to look at subclause 6(2) of the proposed legislation where it states:
(2) Every person who works in the office of an agent of Parliament and who intends to occupy a politically partisan position while holding the position in that office must provide the relevant agent of Parliament with a written declaration of their intention to do so. The declaration must indicate the nature of the politically partisan position, as well as the period of time during which the person intends to occupy it.
The way I read the word "works," that could potentially include volunteering to do all kinds of different things, including working for a political party during an election.
There is a scheme that you administer now for mid-level public servants, and that's based on the Supreme Court of Canada decision that said that public servants should be able to participate under certain constraints as long as they are able to perform the function properly and don't in any way bring disrespect to the public service. This goes further and says that if somebody wants to work for a political party, they have to file a declaration.
Have you had any legal opinion as to whether this would go further? I'm sure that balance was well thought out when the Public Service Employment Act was passed a few years ago, and to reflect the Supreme Court of Canada decision. Has there been any vetting of this section against the balance that you administer now to give you some feeling as to whether this section goes too far or if it is okay?
Ms. Robinson: Thank you for the question. We did a legal analysis on the bill vis-à-vis the current authority under the Public Service Employment Act. As noted before, there are a number of areas where there's duplication and potential confusion, and I think this perhaps is one of them.
When it comes to a public servant who wants to run for office, the bill actually says the person must declare that. But in fact, before they do that, they have to come to the Public Service Commission first and seek permission. So there's one area of potential confusion. In fact, the provisions of this bill weaken that regime in some respects.
With respect to the non-candidacy political activities, you are correct in saying that this imposes additional requirement, whereas the system under the Public Service Employment Act we administer is sensitive to the nature of the duties, the visibility of the position and the type of political activity. We feel that the current system works well because it is sensitive to those things.
What it means in practice is that if somebody is in a job where, for example, they have administrative or clerical functions, and they don't have a lot of decision-making authority and a visible position, then they have the freedom to do quite a number of non-candidacy type political activities in accordance with the Supreme Court decision.
The Public Service Employment Act applies to people all the way up to the assistant deputy minister level, which is a very senior position in government. For those individuals who have lots of visibility and decision-making authority, they would be significantly restricted in what they could do.
It is necessary to look at these on a case-by-case basis, whereas Bill C-520 is more of a blanket application, which we think could interfere with people's rights.
[Translation]
The Chair: I will now turn the floor over to Senator Rivard, the sponsor of the bill.
Senator Rivard: Thank you, Mr. Chair. I sent you my submission because, usually, in committees, we can't question colleagues from different parties; tradition dictates that we address our questions to the witnesses. I agreed to sponsor this bill in the Senate, and, as I said in my remarks, the purpose of this measure is to avoid conflicts of interest and perceived conflicts of interest. It's not unusual for certain colleagues to challenge us and argue that the bill should be rejected outright. That's democracy; we have gotten used to hearing those comments and, if the tables are ever turned, they will probably hear the same comments.
In my statement, I proposed that the bill be referred to our parliamentary committees so that we could hear from the people affected. This evening, Mr. Chair, we should be congratulated for obtaining agreement to bring the witnesses before the committee to hear what they have to say. I want to thank them. Their input gives us a lot of insight into the potential risks and improvements regarding the bill.
As everyone knows, there are three possibilities: pass the bill as is, amend it or reject it. At the end of the day, the committee will decide. Nevertheless, I do think it was very important to hear your views.
I have a comment. I had the opportunity to meet with Mr. Fraser; from time to time I sit on the Official Languages Committee — along with another colleague who is here today — and I'm always amazed at how proficient he is in both official languages.
Mr. Fraser, I'm in the mood to tease you a bit. I am hoping you can clarify something for me. I'm not trying to be Bernard Pivot, for those who are familiar with him, or Professor Guillemin, for that matter, but I have a little question about your statement.
At the end of your presentation, in English, you say, "Thank you for your attention." And, in French, you say, "Merci de m'avoir écouté." In French, I would have expected to hear you say, "Merci de m'avoir entendu," because the word "écouter" means that we are granting your request — (laughter). I repeat, I am no Pivot or Guillemin, but I admire your skills in both official languages. Thank you, Mr. Chair, for letting me make that comment.
Mr. Fraser: Senator, I very much appreciate your own level of precision when it comes to both official languages.
[English]
The Chair: This brings an end to our meeting for this evening. We would like to thank Ms. Robinson, Mr. Ferguson, Mr. Therrien, Mr. Fraser and Ms. Legault for being here and helping us to understand the potential impact of this legislation and your concerns. On behalf of the Standing Senate Committee on National Finance, thank you very much for the work that you do for Parliament and for parliamentarians.
Colleagues, what I would propose is rather than adjourning, we go into a short meeting to talk about future business for five minutes.
(The committee continued in camera.)