Proceedings of the Standing Senate Committee on
National Finance

Issue 4 - Evidence

The Standing Senate Committee on National Finance, to which was referred Bill S-6, to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the marketplace, for dealing with allegations of wrongdoing and for protecting whistle-blowers, met this day at 9:33 a.m. to give consideration to the bill.

Senator Lowell Murray (Chairman) in the Chair.

[English]

The Chairman: The committee has before it Bill S-6, the Public Service Whistle-Blowing Act, a private members bill in Senator Kinsella's name.

Bills similar if not identical to this have been around for a good long time. In the Thirty-fourth, Thirty-fifth and Thirty-sixth Parliaments there were private members' bills in the House of Commons. In December, 1999, Senator Kinsella brought in his Bill S-13. This committee held three meetings and we heard 10 witnesses on the bill. The bill, unfortunately, died with dissolution of the last Parliament. Bill S-6 received second reading in the Senate on January 31 last and was referred to this committee. We had a meeting on February 27. We had hoped, I think it is fair to say, at that meeting to proceed to clause-by-clause study of the bill. We were somewhat sidetracked by a legal issue regarding whether the name of the whistle-blower could be kept secret from any person in respect of whom he had blown the whistle.

To clarify this, and other legal issues, we have gone to the top. We have the Law Clerk of the Senate here today to discuss these matters. If we go to clause-by-clause study, as I trust we will today, I understand that Senator Kinsella has a number of amendments ready to place before us.

Without further ado, let me call on Mr. Mark Audcent, our Law Clerk, who has a brief presentation. We will listen attentively to him, as always.

Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, I have been asked to speak to you on the subject of the confidentiality provisions of Bill S-6. The purpose of Bill S-6 is to establish a regime for dealing with wrongdoing in the Public Service. For public servants who reasonably suspect wrongdoing in the workplace, it provides a procedure to inform an authorized, competent official. Paragraph (b) of clause 2, which is the purpose clause, allows for the information to be given "in confidence."

In government, transparency is generally considered to be a virtue. For this reason, Bill S-6 does not impose a requirement of secrecy or confidentiality. However, if confidential reporting were not an option, many reports of wrongdoing that would be in the public interest might not be made. Clause 9 gives the whistle-blower the right to request that his or her identity be kept confidential with respect to the notice. The word "request" implies that a response is expected. In fact, clause 10 refers to the public interest commissioner giving the whistle-blower "an assurance that, subject to this act, their identity will be kept confidential."

When Mr. Marks of the Treasury Board appeared before you, he made the point that one cannot accord absolute confidential treatment of the identity of an individual making a disclosure. He also noted that, at present, employees must be clearly informed of the limits of confidentiality before making any disclosures. I agree with this point that one cannot accord absolute confidential treatment. I also agree that employees must be clearly informed of the limits.

Let us review how Bill S-6 deals with these issues. There is no reason to suppose that the current practice of informing whistle-blowers of limits on confidentiality will change under Bill S-6. There is every reason to suppose that the practice will continue. Common sense suggests that in real life a prospective whistle-blower who wants to remain anonymous will obtain information about the whistle-blowing process and the basis upon which confidentiality is to be assured. In fact, I imagine a potential whistle-blower consulting at least a brochure or a Web site and probably asking for a follow-up briefing from commission staff. I would anticipate that pre-filing discussions about a particular case would be the norm.

Moving from a request for confidentiality to an assurance of confidentiality will require the parties to review the limitations inherent to the circumstances of a particular case. A commissioner could be expected to clearly set out for the whistle-blower the more obvious limitations on confidentiality.

In some cases, the very facts of the case may make confidentiality impractical, if not impossible. The law imposes limits, too. The evolution of the law with respect to solicitor-client privilege and police-informant privilege demonstrates some of the circumstances in which the public interest will require confidentiality to cede to a higher good. In Bill S-6, subclause 5(1) makes the commissioner's right to go public subject to the whistle-blower's right to confidentiality. Subclauses 5(2), (3) and (4) all provide the commissioner with the more limited right to disclose information for specified purposes. These more limited rights to disclose are not subject to the whistle-blower's right to confidentiality. Unlike subclause 5(1), none of subclauses 5(2) to (4) is made subject to clause 10. If necessary, on an as-needs basis, and for the limited purposes set out in those subclauses, the commissioner may disclose the identity of the whistle-blower.

Subclause 5(2) allows the commissioner to disclose information in order to carry out the investigation and to make the report. If the facts of the case are such that it is necessary to disclose the identity of the whistle-blower on some limited basis in the interests of a proper investigation of the report it can be disclosed.

Subclause 5(3) allows the commissioner to disclose in proceedings designed to protect the integrity of the act and operations under it, such as in perjury proceedings.

Subclause 5(4) allows the commissioner to disclose information relating to an offence against the law to the Attorney General of Canada or a province.

Subclause 5(4) underlies the intervention of Senator Banks. He imagines a wrongdoing that is the subject of allegations to the commissioner and also an offence against the law. Senator Banks referred to criminal charges, suggesting an offence against the criminal law. The commissioner is in receipt of an allegation. Having determined that there is evidence of a criminal offence, the commissioner now wishes to disclose information to the Attorney General, including the name of the whistle-blower. Subclause 5(4) allows the commissioner to do this.

At this stage, it might be possible for a whistle-blower to acquire new status with the police as a police informant. It seems to me that it would be up to the public interest commissioner to explore this possibility before the question actually arises. The identity of police informers is privileged in law. The privilege is a legal rule of public order by which judges are bound. Subject to the exceptions that have been developed to the rule, the court cannot compel the disclosure of the identity or information that might disclose the identity of an informer.

The final statement by Mr. Marks that needs addressing is that the accused has the right to know his or her accuser and the nature of the allegations. Undoubtedly this is true, but it is not the identity of the informer that the accused will have the right to know. Rather, the accused will have the right to know the identity of the police officer and the nature of the charges that the officer makes. Even without the status of a privileged police informer, a whistle-blower is a confidential source of information. Public policy may allow others to learn of the whistle-blower's identity, but the information will be acquired on an as-needs basis.

I leave the clause 5 limitations and turn to yet other limitations on the confidentiality.

Subclause 12(5) allows the commissioner to proactively advise a person accused by a whistle-blower in two circumstances. One is where the allegation is made in breach of solicitor-client privilege. The other is where the commissioner considers that an allegation was not given in good faith and on the basis of reasonable belief.

Solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented. However, despite its importance, the privilege is not absolute. For example, the fundamental privileges of solicitor-client privilege and the right to make full answer and defence must be reconciled. Privilege must yield in the circumstances described as the innocence-at-stake test. If it is a question of the innocence of an accused versus solicitor-client privilege, the right of the accused to defend him or herself trumps it. Solicitor-client privilege will also yield where there is grave and imminent danger to the public health and safety. Subclause 9(4) of Bill S-6 accommodates this exception.

Moving on again, clause 10 provides that it is subject to any lawful requirement made to the commissioner under this proposed act or any law in force in Canada. Subclause 20(1) provides that it operates except as authorized by this proposed act or any other law in force in Canada. The essence of these provisions is that the right to confidentiality conferred by Bill S-6 is not absolute but must operate within the wider legal context in which competing social values are weighed.

Other courts and tribunals with a legal right to do so may therefore try to access the identity of the informer on an as-needs basis. The commissioner and the courts would have to determine whether a legal requirement to disclose the identity exists. Assuming that a legal requirement to disclose the identity exists, one anticipates that the commissioner would seek assurances that the identity of the whistle-blower would be protected and only disclosed on a need-to-know basis for the limited purposes authorized by law.

This generality leads into a particular application, namely, the interaction of the confidentiality provisions of Bill S-6 with the Access to Information Act and the Privacy Act. Generally speaking, if the proposed Public Service Whistle-blowing Act is enacted, then it, the Privacy Act and the Access to Information Act will all have to be reconciled and read together in harmony as equal enactments of the Parliament of Canada.

The courts have held that the Access and Privacy Acts are complementary legislation. They have declared that the collective purpose of the legislation is to provide Canadians with access to information about the workings of government without unduly infringing individual privacy.

The courts have also held that access to information and privacy are competing legislative policies. One way in which they are reconciled is by the introduction in both acts of the common concept of personal information as defined in the Privacy Act. Personal information is very broadly defined to mean information about an identifiable individual that is recorded in any form.

The general legislative intent is to give the public a right of access to general government information under the Access to Information Act and a further right of access to their own personal information under the Privacy Act. However, the Access to Information Act limits access to government information on several public policy grounds. For example, national security is an obvious one. Both the Access to Information Act and the Privacy Act limit access to information that is the personal information of another without that individual's consent.

Although the general legislative scheme can be described easily enough, the acts are very detailed, very complex, and replete with exceptions. As you know, an industry has grown up around them, and there are now people who are specialists with respect to their application.

In the context of Bill S-6, the legislation gives rise to several questions. Will someone who suspects that he has been accused be able to find out through an access request? Will someone who has filed a notice under the proposed act have the right to keep that fact confidential in the face of another's access request? And will the general public, say the press, be able to access the commissioner's investigations and reports?

As it is currently drafted, Bill S-6 expresses the intention of Parliament that it be possible to make and receive an allegation in confidence. It is in the bill. The bill's provisions set out the exceptions where information can be disclosed. Having legislated on confidentiality, the bill then leaves the protection of that confidentiality from access requests under the Access and Privacy Acts to the operation of the provisions of those acts.

I have reviewed with outside counsel the potential application of the Access and Privacy Acts and some of the related jurisprudence interpreting them on the operations of Bill S-6. Their provisions are adequate to allow for the full protection of confidentiality that Bill S-6 contemplates but could also allow for possible disclosure. Who in the administration or in the courts is called upon to interpret and reconcile the competing interests becomes important. For our purposes, I must conclude that the matter is not black and white and that the room left to interpretation leaves a vulnerability to disclosure.

In the 1997 Dagg case, the Supreme Court of Canada split 5-to-4 on the facts of the case, the majority holding that a building sign-in log, where you sign in as you come into the building, was not protected from disclosure. Surprisingly, the majority held that although the information sought was within the general concept of personal information as defined in the opening words, it was excepted out later in the definition.

The case of Rubin v. Canada (Minister of Transport), commonly called the Nationair case, was also decided in 1997. A review had been conducted under the Aeronautics Act following a plane crash in Saudi Arabia, and the request was for the safety review report. Section 16 of the Access to Information Act limits disclosure of information that could reasonably be expected to be injurious to the conduct of lawful investigations, including information that would reveal the identity of a confidential source of information. The Federal Court of Appeal held that paragraph 16(1)(c) of the Access Act, when read in context, is intended to apply to information the disclosure of which will have an impact on specific investigations that are ongoing or about to be undertaken. The paragraph did not apply to completed investigations. The court also held that if its decision had a chilling effect, Parliament could either provide for wide-scale confidentiality protection or add the reviews to the section 24 category of broad exemptions to the Access to Information Act.

Honourable senators, to the extent that the right to privacy rests on a reasonable expectation of privacy, a whistle-blower under the proposed Public Service Whistle-blowing Act who requests confidentiality would have that expectation.

The provisions and mechanics of the Access to Information Act and the Privacy Act should operate to protect Parliament's intention and the whistle-blower's expectation. However, given the technical complexity of these acts, the result cannot be guaranteed. It seems to me that you therefore face the choice of deciding whether to wait and see how the proposed whistle-blowing legislation, the Access to Information and Privacy Acts do in fact interact with respect to confidentiality or to tighten up the provisions of the bill now.

I have received instructions to draft amendments to be circulated for your consideration, and I wish to explain their tenor. There are six in number. Five amendments are on the subject of confidentiality and one is a stand-alone. The amendments concerning confidentiality amend clauses 9, 14, 17 and 20, and the bill adds a new clause, which is number 23.

Mr. Chairman, shall I carry through with comments?

The Chairman: If you plan to describe and explain the proposed amendments, I would prefer that you wait until they are before the committee. Members of the committee will have copies of the amendments and copies of the bill in front of them. I will stop you there, Mr. Audcent, and ask whether there are any questions of a general nature.

Honourable senators, Mr. Audcent is our legal adviser. As you know, the Senate does not obtain advice from the Department of Justice. The Department of Justice advises the government; Mr. Audcent and his colleagues advise us. You have heard him.

Senator Banks: Mr. Audcent, in the case of a whistle-blower who makes a complaint that is likely to be dealt with internally as a matter of discipline, demotion or whatever and that does not go to criminal proceedings and in which the police officer would not be a question because one would not exist, according to the terms of this bill does it still fall within the discretion -- if that is the right word -- of the commissioner whether or not to reveal the identity of the accuser?

Mr. Audcent: Senator, I would ask you to turn to subclause 14(2) of the bill, page 7. The situation here is that the commissioner has received a notice, has decided that it is not in bad faith, and that, yes, there is something here that should be considered. Under subclause 1, the investigation is initiated. Then, under subclause 2, it says:

The Commissioner is not required to prepare a report if the Commissioner is satisfied that

(a) the employee ought to first exhaust review procedures otherwise available.

In other words, there are already mechanisms to deal with labour disputes. The matter could be more appropriately dealt with elsewhere, initially or completely, by means of a procedure provided for under law enforcement in Canada other than this bill. Perhaps the person should go to the Human Rights Commission, perhaps to the police. The third exception relates to length of time.

Parliament has already provided for recourse in other areas. The commissioner will simply get an opening look at this and say, "Look, you are in the wrong forum," and the whistle-blower will go way and it will not go any further than that.

Senator Banks: If it does fall within the purview of the commissioner according to the bill, does the commissioner have the sole discretion under this bill to disclose to the accused the identity of the accuser?

Mr. Audcent: When it comes to disclosing the identity of the whistle-blower to the accused, clause 12(5) says:

Where the Commissioner determines under subsection (1) that a notice was given in breach of subsection 9(4) or was not given in good faith and on the basis of reasonable belief, the Commissioner may advise the person against whom the allegation was made and the minister responsible for the employee who gave the notice.

Assume for a moment that I am a whistle-blower. I come to the commissioner and I say, "Would you please give me an assurance of confidentiality?" The commissioner comes back to me and says, "I have looked at your case and I am prepared to give you an assurance of confidentiality. Here it is." It will probably be in writing, with all the ifs, ands and buts. However, the whistle-blower must realize that if the commissioner finds criminal activity he may be required to report it to the Attorney General.

The whistle-blower has an assurance of confidentiality. Then you turn to subclause 12(5), which gives a very specific and narrow case. Subclause 12(5) say, in part: "Where the Commissioner determines under subsection (1) that a notice was given in breach of subsection 9(4)," which is solicitor-client privilege. We are talking about a lawyer who, having learned information on a confidential basis, went to the commissioner and breached that confidentiality. As a lawyer, I can tell you that I would think it would be terrible for a lawyer to breach solicitor-client privilege.

On the other hand, where it was not given in good faith and on the basis of reasonable belief, where I am deliberately trying to hurt another person by abusing the process, the commissioner may then -- "may", not "must" -- advise the person against whom the allegation was made. It is not really an accused person because it is not a criminal process, but the person against whom the allegation was made and the minister responsible for the employee who gave the notice. Therefore, the situation in which this bill opens it up for the commissioner to go to the accused is a narrow one.

Senator Taylor: I could not quite follow the limits of confidentiality. The commissioner can tell the whistle-blower, after looking at the case, that he can have confidentiality. I did not understand everything you said, but my impression is that the commissioner could change his mind as the case developed. How solid is the commissioner's commitment to the whistle-blower for confidentiality, if you leave it outside the idea of criminal action?

Mr. Audcent: Senator, I would not say that the commissioner can change his mind. That is the wrong perception. Confidentiality is never absolute. A witness from the Treasury Board told honourable senators that, and I stated that I agree with that. All of these things represent competing social values.

Let me take the example of what I call the "innocence-at-stake test." The Charter guarantees our right to a fair trial. If the identity of someone must be revealed in order that you do not get convicted, that is a Charter right. It is proper that it would trump a right to confidentiality. You would not expect anything different, especially if you were the accused. These things are not absolute. They play out in terms of competing social values.

This bill is structured, if you go back to its fundamental structure, in such a way that the whistle-blower asks for confidentiality. The whistle-blower asks for confidentiality and the commissioner gives assurances. That is intended to create a dialogue wherein the commissioner explains to the whistle-blower what the limits on confidentiality are, because there are limits that are already inherent in the system. There will be competing social values; therefore, it allows the commissioner to put the whistle-blower on notice. Yes, generally speaking, confidentiality will be given. The whistle-blower must be aware that there are circumstances where other rights will trump that and decide to take the assurance or not.

The bill is structured in much the same way as the other provisions. The bill is structured so as to cause a dialogue concerning the limits of confidentiality and what kind of confidentiality the whistle-blower can expect as he enters into the process.

Senator Banks: You have answered my first question in the affirmative, that is to say that the commissioner has discretion in large measure for the purpose of the question of disclosure.

Can we assume that the commissioner will always explain that his assurances of protection of identity have some limits? Should there be a reading of rights that provides assurance and instructs a potential whistle-blower who is naive and does not know enough to ask the questions or go to the various places to which he has access? Can we rely entirely upon the good offices of the commissioner to ensure that a whistle-blower understands that there are limitations on assurances of privacy?

Mr. Audcent: Honourable senators, there would be many ways to structure a whistle-blowing act. Whenever you decide to come up with a legislative proposal, you commit to certain solutions. The solution of specifically saying in law that you shall ask for confidentiality and that you shall receive assurances, obviously the person who is giving you assurances has an obligation to make sure those assurances are true. First, the commissioner must ensure that the assurances he or she gives are within the law and that any legal obligations to which the commissioner will be subject are expressed. Second, any discretion to which the commissioner might be called upon to exercise must also be outlined. I think that is a reasonably elegant solution.

[Translation]

Senator Ferretti Barth: You talked about the commissioner and the fact that he will encourage whistle-blowers. There are limitations. Confidentiality may apply but not in every case. Before they start talking will whistle-blowers know that the commissioner can give them some assurances but only to a limited extent? Are we going to keep from them the consequences of their whistle-blowing? You spoke about clarity and transparency. The employee willing to give notice of wrongful acts might change his mind once the process has been explained to him.

Mr. Audcent: Let us come back to Section 9, paragraph (1) of this bill. It refers to the employee who wants to give notice of a wrongful act. In subsection (a), he may file a notice and in subsection (b) he may request that his identity be kept confidential. To do so, obviously, he must have first enquired about the process. As it is the case if you lodge a complaint to the Human Rights Commissioner, you must first enquire about the process, where to go, the forms to fill out, and so on. There might be a Web site for the commissioner or an information brochure telling the employee how to file his notice of allegation.

Filing a notice is an important decision. An employee who intends to file one would probably ask for a preliminary meeting with the commissioner or his staff in order to know better what it entails. The information would probably be given to him verbally rather than in writing. People will talk about the process as is usually done.

[English]

Senator Cools: The witness speaks as though confidentiality and privilege are interchangeable terms, and they are not. Very little confidentiality is privileged, and even within the context of solicitor-client privilege it is an extremely narrow privilege.

Perhaps the witness could explain that more. I am always nervous when I see solicitor-client privilege enshrined in statutes; it causes me much nervousness. It would be far better in any system where we are trying to protect public servants that we rely on parliamentary privilege to protect them and not this rather vague notion of solicitor-client privilege. Perhaps the witness could comment on that.

Mr. Audcent: I agree with you that the ideas of privilege and confidentiality are not necessarily the same thing. Bill S-6 is based on the concept of confidentiality; it is not based on the concept of privilege. It talks about a right to confidentiality and protection of confidentiality. It says that the intention of Parliament is that someone could make an allegation on a confidential basis. Thus, what we are dealing with here is the concept of confidentiality.

You are right that the word "privilege" entered into my presentation. Where it entered into my presentation was when we were talking about where the commissioner can go back and say, "No more confidentiality. I am going to tell the accused." We can do that when clause 9(4) has been breached. If we go to clause 9(4), the marginal note is "Solicitor-client privilege." Clause 9(4) reads as follows:

No employee, in giving notice under subsection (1), shall violate any law in force in Canada or rule of law protecting privileged communications as between solicitor and client --

In other words, there is a limitation under this proposed legislation. A lawyer who receives information in a privileged context, as a lawyer, cannot be a whistle-blower. If this bill were to apply to Parliament, if one of you came to me and gave me information, I could not whistle-blow on you.

Senator Cools: That is the problem.

Mr. Audcent: We are simply saying that solicitor-client privilege always continues. Solicitor-client privilege is subject to some exceptions, and the most important one for a whistle-blowing bill is public safety. If the lawyer finds out that someone is about to do some dreadful thing that would compromise the life and safety of a million people, obviously, once again nothing is absolute. Neither confidentiality nor privilege is absolute; thus, the public health and safety exception comes into play.

In the normal course of events, public servants can be whistle-blowers; lawyers cannot be whistle-blowers with respect to information they get as lawyers. They can be whistle-blowers with respect to information they have received as administrators, or in other capacities, but not with respect to information they have obtained from a client in a privileged environment.

Senator Cools: I have many problems with such clauses, not only in this statute, but in any statute. If a lawyer is relying on solicitor-client privilege, he or she should rely on that. There is no need to have that in the statute. What is the purpose for putting that it into the statute? Solicitor-client privilege exists in the common law. Why are we moving that into a statute? It seems to be quite self-serving.

Senator Kinsella: I am glad Senator Cools raises this point. This is why we wanted to go back one step. It seems to me that our objective was to have a whistle-blowing bill. The only way to have one is to protect confidentiality. That is our starting point. Good questions were raised at our last meeting, including this question.

I must put on the record my appreciation for the tremendous amount of work the law clerk has done, including going to outside counsel. What he has said and the amendments that we will bring forward will improve the bill. There are limitations to using ordinary language, but they are circumscribed. Solicitor-client privilege is limited, it is not absolute.

Senator Cools: It seems to me that there are millions of ways to approach drafting legislation. There are many sorts of perspectives to obtain these same ends. It seems to me that if it is Parliament's intention to ensure the well-being of the communities through the proper functioning of a public servant then protecting individuals in the public service who are concerned is a very worthy endeavour. However, it seems to me that if Parliament really wants to accord these individuals protection -- and we know because we are all members of Parliament and we know the information that comes to us -- then the proper way to do that is to begin to build on parliamentary privilege and somehow or other bring them into the protection and consideration of Parliament, rather than immunizing individuals, mostly lawyers. Somehow or other, that protection will redound to the individual. You and I know that in real life it does not work like that. You and I know very well exactly how these provisions come out. I would love to see the hand of Parliament strengthened in so many of these ways.

We have had witnesses come before us whom we know have had some kinds of pressures within their individual departments. One of the positive benefits of Senator Kinsella bringing forward this initiative is that at least Parliament has begun to talk about some of these things.

It seems to me that every single individual should know that if they come forward the protection of Parliament will flow to them and that Parliament will be receptive to receiving these individuals, far from the situation that has been pertaining for the last few years.

The Chairman: Your argument is evolving as you go, Senator Cools. Your first argument, as I understood it, was that if solicitor-client privilege exists in any event at common law then why should it be necessary to specify in the statute that solicitor-client privilege is an exception to, in this case, the proposed whistle-blowing legislation?

Your second argument seems to be that parliamentary privilege should protect witnesses, for example, before parliamentary committees and that, if I understood you correctly, solicitor-client privilege would be secondary and that we would have a right and a duty, in your view --

Senator Cools: I did not get involved in the drafting of the bill. I was not allowed to be on the special committee on the Pearson inquiry, where a lot of information was withheld from the committee on the grounds of so-called solicitor-client privilege, especially when many individuals tried to tell us that there is an entire department now that is protected by solicitor-client. I remember reading that in some of the testimony. I am wondering why this was done. It flows on to my next question, and perhaps I can throw out all of these questions and move it on again.

What happens to the whistle-blower in the commissioner's office? Who protects the whistle-blower from the commissioner? How is that done? If an impropriety or insufficiency is being complained of and is brought forward by a whistle-blower, then what happens when it involves the individuals who are being given these powers so-called to protect whistle-blowers? It does happen.

I did not mean to raise difficult questions for you, Mr. Audcent.

Mr. Audcent: Senator, that is what makes it fun, is it not?

With respect to your first intervention, it strikes me that we have to ask this question: To whom does this bill speak? We are saying that it speaks to public servants who are within the purview of the bill. It strikes me that they are looking at this and asking: Is this or is this not a good thing for us? Whistle-blowing will be facilitated by putting into place an infrastructure.

It strikes me that the very first thing that they will want to know is that if there is to be complex new legislation they had better be able to have access to counsel. It also strikes me that if they are to have access to counsel they want to be sure that counsel cannot in turn go running to the commissioner. That is all that clause 4 is doing. It applies to the public service. There is a paragraph for lawyers. Lawyers in the public service cannot be whistle-blowers with respect to information they receive on a confidential basis. Why? Because everyone else in the system needs access to their advice. That is their purpose. I emphasize that. However, there is an exception, and it is put visibly in front of your eyes. If you are speaking about public health or safety, then all bets are off because the public health has a right to be protected.

With respect to the second part of your question, senator, that had to do with parliamentary privilege, I do not think parliamentary privilege comes into play under this proposed act because we are talking about events taking place in the executive and not within the Senate or the House of Commons.

Senator Cools: If there were a clause in the bill that somehow included the fact that some of this business at the end of the day should be reviewed by Parliament, what I was thinking is that we could have found a way to bring parliamentary privilege at the end of the day into the confines of Parliament, either by an annual review or a committee review.

I have read far too much legislation on these different commissioners and tribunals and how they have been set up. If you were to read the old debates, you would discover that they are set up for one purpose. At the end of the day, they are attending to another purpose. For example, the one that comes to mind is the judicial council, which was set up for an entirely different purpose from where it has gone.

I just love to see in legislation that things should come before Parliament. It gives me great comfort.

Senator Kinsella: I have a small point. Senator Finestone, the co-sponsor of the bill, had raised at our last meeting having a review of the proposed legislation. That is one of amendments we will bring in. We will propose that after three years the bill be revisited. If there were any problems with this particular section they could then be dealt with.

Second, each year the commissioner must report through the Public Service Commission to Parliament, so we do have that parliamentary oversight.

Senator Bolduc: Senator Cools, Mr. Audcent's presentation took 20 minutes. Some of your questions were answered at the beginning of his presentation..

I would like to have that document, if it is possible to do so. Is it possible to get a copy of your presentation? I did not get one. It contained fairly heavy stuff. We just heard it without reading anything. It is more difficult for me when it is presented in English. There is the fine line between what you said on the one hand and, on the other hand, our effort to make it possible for civil servants to whistle-blow when they see something that is wrong above them, in particular with their deputy minister or their assistant. It is the top that we are talking about and the person who sees something that is not correct. We want to favour protection of that individual.

The right of the accused is well protected in our criminal law. There is due process. Otherwise, it would be easy to send a letter to the Public Service Commission and say, "This person did such and such." That is not enough. It must be well grounded and the person must be protected. The fine line is fairly well represented in the bill. There may be some amendments to it, but subclause 4(9) outlines the procedure to follow here. Mr. Audcent's presentation was much more elaborate.

The Chairman: Shall we move to clause-by-clause consideration of the bill? I would ask Senator Kinsella to circulate his proposed amendments to the members of the committee, if he has not done so already, so that we will have them before us.

Senator Tunney: What about the practice in some cases of a third-party informant -- that is to say, where someone with information hopes to protect his identity by using a third party as an informant? If that is done, is it the commissioner's practice of getting back to the original informant to determine whether the original informant will be identified?

Mr. Audcent: Yes. The scope of this proposed act is not wide enough to accommodate the situation that you are talking about. Clause 9 says that a person who has reasonable grounds to believe that another individual working has committed or to commit a wrongful act may file a written notice of allegation. In order to trigger the commissioner's right to deal with this process -- that is, in order to come within the process that this proposed act contemplates -- it cannot be a third party out in the public that walks into the commissioner's office.

The Chairman: You have the proposed amendments before you. Who will move these amendments -- Senator Kinsella or Senator Stratton?

I will take you through it. Most of you have had experience with clause-by-clause consideration of a bill. Normally, both the title and clause 1 would stand, and then we would start with clause 2.

Is it agreed that the committee move to clause-by-clause consideration of Bill S-6?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the title stand?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 1 stand?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 2 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 3 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 4 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 5 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 6 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

If any of you have questions or comments on any of these clauses now is the time bring those forward.

Shall clause 7 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 8 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 9 carry?

Senator Stratton: There is an amendment for clause 9. I move:

That Bill S-6 be amended, in clause 9, on page 5, by adding after line 25 the following:

(5) An employee who has made a request under paragraph 1(b) may waive the request or any resulting right to confidentiality, in writing, at any time.

(6) Where the Commissioner is not prepared to give an assurance of confidentiality in response to a request made under paragraph 1(b), the Commissioner may reject and take no further action on the notice.

The Chairman: Do you wish to comment on this, Mr. Audcent?

Mr. Audcent: Honourable senators, the purposes of these amendments are to state what I think would be implicit; however, just so that it can be read and seen by the reader of the proposed act, the amendment completes it. With respect to subclause (5), if you have requested confidentiality or if you have requested and been given confidentiality and start off rather nervously and want to have confidentiality but then, at a later point in time in the file, you wish to go public, then this provision gives them the right to waive their confidentiality.

With respect to subclause (6), once again it fills in a gap. It is what you would anticipate. We speak about the commissioner giving an assurance of confidentiality. Obviously, one must ask, "What would happen if an assurance of confidentiality were not appropriate or could not be given?" This makes express what will happen, namely, that it will be rejected and no further action on the notice will be taken, at the commissioner's discretion.

Senator Banks: Subclause 9(4) it provides that in certain circumstances, for example, public health and public safety, a breach of solicitor-client privilege would be okay. Does that come into conflict with common law or the Charter at any point in time? Will that ever get us into trouble? If some government lawyer blows that whistle because in his or her opinion something is a matter of public safety or public health, is that lawyer okay?

Mr. Audcent: The concept of solicitor-client privilege itself has exceptions. I spoke to you about the innocence-at-stake test as an exception; that is, an individual's right to defend himself or herself if accused and the information is directly relevant to the accused will be convicted. Another example -- and the Supreme Court of Canada confirmed this last year, in 1999 -- is public health and safety. If there is an imminent, large and important threat to public health and safety, solicitor-client privilege is waived.

With this particular clause, we are doing one of two things. We are either codifying the public health and safety exception for solicitor-client privilege or dealing with a borderline case, where one person's judgment is that it is imminent and threatening but someone else's judgment is that it is not. We might be giving a little protection there, saying, "If you were reasonably motivated by public health and safety you will be protected. You can whistle-blow."

Senator Banks: I take comfort from what you have just said, namely, that the Supreme Court has determined that in those cases it can be breached with impunity.

The Chairman: Honourable senators, you have the proposed amendment to clause 9 before you.

It is moved by the Honourable Senator Stratton -- shall I dispense?

Hon. Senators: Dispense.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 10 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 11 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 12 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 13 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 14 carry?

Senator Stratton: I move:

That Bill S-6 be amended in clause 14, on page 7, by replacing line 34 with the following:

(4) Information related to an investigation is confidential and shall not be disclosed, except in accordance with this Act.

(5) The Commissioner shall provide the.

Essentially, we are changing subclause (4) to (5).

The Chairman: Mr. Audcent, do you wish to say a word of elaboration or explanation on this matter?

Mr. Audcent: Honourable senators, your last meeting raised the question of confidentiality. The subject was of concern to you in such a sufficient amount that you asked me to come and speak to you on that subject today. Obviously, the bill was looked at rigorously from a confidentiality point of view.

This provision makes express that in the investigation that is done by the commissioner, in which obviously information, both verbal and written, will be gathered, the information is confidential and must not be disclosed, subject to all of the disclosures that this proposed legislation allows and that you have reviewed and that you think are reasonable. Once again, you are reducing it.

You will need this amendment if you plan to do a further amendment that is going to be proposed. There are two linked amendments.

Senator Banks: Perhaps we should look at that amendment now.

The Chairman: Do you want to look at the link?

Mr. Audcent: Turning to new clause 23, there are two of them. Look at the one entitled "Consequential Amendment." This would add a new clause to the bill. That clause would amend the Access to Information Act, in particular Schedule II to the Access to Information Act, by adding: "Public Service Whistleblowing Act, section 10, subsection 14(4) and section 20."

Essentially, that codifies your intention that the confidential information and the name of the whistle-blower under this proposed act should not be disclosed under the Access to Information Act. It codifies the result that you would have otherwise anticipated.

Senator Banks: I love the word "shall."

The Chairman: It is so categorical, is it not.

It is moved by Senator Stratton that Bill S-6 be amended in clause 14 -- shall I dispense?

Hon. Senators: Dispense.

The Chairman: Is it your pleasure, honourable senators, to adopt the said motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 14 as amended carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 15 carry?

Hon. Senators: Agreed.

Hon. Senators: Carried.

Senator Kinsella: For the record, I am not too sure whether you put the motion whether clause 9 as amended should carry.

The Chairman: You are quite right. I did not, and I should have. I thought perhaps you would overlook that.

Senator Kinsella: It is the prerogative of the chair.

The Chairman: Shall clause 9 as amended carry?

Hon. Senators: Agreed.

The Chairman: Carried.

He was trained in Rome, in theology. They are terrible nitpickers.

Shall clause 16 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 17 carry?

Senator Stratton: I move that Bill S-6 be amended in clause 17 on page 8 by replacing lines 30 and 31 with the following: "(c) the number of notices rejected pursuant to sections 9 and 12." We are adding "9."

The Chairman: Yes. That is consequential upon the earlier amendment we made. Do you have anything further to add to it?

Mr. Audcent: Make it reported to Parliament, for Senator Cools.

The Chairman: Senators, Senator Stratton moved that Bill S-6 -- shall I dispense?

Hon. Senators: Yes.

The Chairman: Is it your pleasure, honourable senators, to adopt the said motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 17 as amended carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 18 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 19 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 20 carry?

Senator Stratton: I move that Bill S-6 be amended in clause 20 on page 10 by replacing lines 25 to 30 with the following:

20. (1) Except as authorized by this Act or any other law in force in Canada, no person shall disclose to any other person the name of the employee who has given a notice under subsection 9(1) and has requested confidentiality under that section, or any other information the disclosure of which reveals the employee's identity, including the existence or nature of a notice, without the employee's consent.

The Chairman: Mr. Audcent, what is the need for this?

Mr. Audcent: Honourable senators, you will recall that when you amended clause 9 you put in an express provision allowing the employee to waive. You do not necessarily want confidentiality forever. The way that section 20 is worded right now, it does not talk about consent or someone disclosing your identity with your consent. It would be obvious that that is not an offence, but in view of the fact that we are tightening up and allowing for a waiver, you want to do the corresponding amendment in the offence provision by saying that if the employee consents there is in no offence. That is the primary purpose of this amendment.

Once I had opened up the clause, I also reworked the language a little bit to make it better and give better protection for the name of the employee. However, the primary purpose deals with the offending words "without the employee's consent," to say obviously there is no offence if you are doing it with the employee's consent.

The Chairman: It is moved by Senator Stratton that Bill S-6 be amended in clause 20 on page 10 by replacing lines 25 to 30 with the following -- shall I dispense?

Hon. Senators: Dispense.

The Chairman: Is it your pleasure, honourable senators, to adopt the said motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 20 as amended carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 21 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 22 carry?

Hon. Senators: Agreed.

The Chairman: Mr. Audcent, there is a proposal for a new clause 23, which I will call on Senator Stratton to propose in a minute. Which one comes first?

Mr. Audcent: Honourable senators, as drafters, we cannot be presumptuous as to what would pass or not, so we always have to work to the existing bill.

The Chairman: Quelle délicatesse!

Senator Stratton: I move that Bill S-6 be amended -- I am going with the second one dealing with clause 23 -- on page 11, by adding after line 19, the following:

Consequential Amendment.

Access to Information Act

23. Schedule II of the Access to Information Act is amended by adding the following in alphabetical order:

Public Service Whistleblowing Act

section 10, subsection 14(4) and section 20.

The Chairman: You presented it first, Senator Stratton. I should say that when the bill is reprinted, this will be the last. This will be at the end.

Senator Stratton: Understood.

The Chairman: The earlier amendment will go first. I do not think there is any problem about dealing with it.

Senator Kinsella: The art of the draft is that this ought to come last.

The Chairman: Yes. Very well. Senator Stratton moved that Bill S-6 be amended on page 11 by adding after line 19 the following -- shall I dispense?

Hon. Senators: Dispense.

The Chairman: Is it your pleasure, honourable senators, to adopt the said motion?

Hon. Senators: Agreed.

The Chairman: Carried.

Senator Stratton: I move that Bill S-6 be amended on page 11 by adding after line 19 the following:

Review

23. (1) On the expiration of three years after the coming into force of this Act, it stands referred to such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established to review its administration and operation.

(2) Within one year after beginning the review under subsection (1) or within such further time as the Senate, the House of Commons or both Houses of Parliament, as the case may be, may authorize, the committee shall submit a report on the review.

The Chairman: That was Senator Finestone's suggestion. Do you have anything to say about that?

Mr. Audcent: Honourable senators, Parliament is involved in this proposed act in the sense that it can receive reports under clause 16. It receives annual reports under 17, and it can receive another set of reports under 17(2). However, Senator Finestone spoke to the committee and thought that a parliamentary review would be a good amendment. My instructions were to draft that amendment; thus, it provides for a review of the proposed act by Parliament.

The Chairman: Senator Cools will be pleased. Are there further comments?

Senator Stratton moved that Bill S-6 be amended on page 11 by adding after line 19 the following -- shall I dispense?

Hon. Senators: Dispense.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Senator Bolduc: Is there an amendment on clause 16 or clause 17?

The Chairman: Clause 17.

Senator Bolduc: I did not see the amendment.

The Chairman: Honourable senators, shall the new clause 23 carry? Is that the proper number?

Senator Kinsella: I believe this last one becomes 23 and the other clause becomes 24.

Mr. Audcent: That is right, senator.

The Chairman: Honourable senators, shall the new clause 24 carry?

Senator Banks: The one we are now voting on is 23 and the one we voted on before is 24. Is that right?

The Chairman: We did not vote on it. I beg your pardon, yes, we did. The consequential amendment is 24, and 23 is 23(1) and 23(2), entitled "Review." They are both carried.

Honourable senators, shall the title carry?

Hon. Senators: Agreed.

The Chairman:Honourable senators, shall I report this bill, as amended, to the Senate?

Hon. Senators: Agreed.

The Chairman: Thank you, honourable senators. Congratulations, Senator Kinsella, and Senator Finestone and others. I will report this bill in a day or two, after which you will be on your own.

Tomorrow evening's meeting, with the Auditor General at 5:45, will be held in room 505. It should be an interesting meeting.

The committee adjourned.