Proceedings of the Standing Senate Committee on
National Finance
Issue 15 - Evidence
OTTAWA, Wednesday, September 17, 2003
The Standing Senate Committee on National Finance, to which was referred Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts, met this day at 6:16 p.m. to give consideration to the bill.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: Order please. Colleagues, we have before us Bill C-25, an act to modernize employment and labour relations in the public service and other acts.
This bill has 286 clauses, plus a couple of schedules, and this meeting is to consider the bill clause-by-clause. You have two options. I can take you through this bill — 286 clauses and schedules — clause-by-clause, that is one option. The second option is that you can look with favour upon a proposal from your Chairman to deal expeditiously with these matters. Which option do you want to take?
Senator Oliver: The expeditious option.
The Chairman: Very well. Here is my plan. I appreciate the courtesy of honourable senators who have advised me of the amendments that they intend to propose. Mind you, if there are any other amendments, senators are always free to present them, but I have 15 or 16 amendments. I have grouped these amendments by subject matter. For example, without going into the substance of them, Senator Oliver has two amendments on human rights; Senator Gauthier has four amendments on official languages; Senator Kinsella has four potential amendments on whistle-blowing, and he also has two amendments concerning the Public Service Commission; Senator Beaudoin has one concerning the Public Service Commission; and on it goes.
My suggestion is that we focus on them by subject. I will take, for example, Senator Oliver's human rights amendments; we will have to vote each of them separately. Senator Oliver or others can speak to them if they wish, but we will vote them, and then we will move to Senator Gauthier on official languages. Then we will move along until we have disposed of the amendments.
When we have disposed of them one way or another, I would propose to take you through the bill part-by-part, rather than clause-by-clause, and the question I will put before you is: Shall Part 1 carry? Shall Part 2 carry? Shall Part 3 carry? — whether as amended or not. Does that sound sensible? It is a departure from the normal, and if we are doing it, I want leave to do it. I want unanimous consent from the members of this committee to do this, because if anyone objects and wants to do it the long way, I am obliged.
Senator Day: I think that is the right way to do it, Mr. Chairman.
The Chairman: Thank you, senator.
Some Hon. Senators: Agreed.
The Chairman: All right. The only other point I want to make before beginning is that there are officials in the room from the Treasury Board, and other officials, including Ms. Boudrias, the assistant deputy minister in charge of the task force. You will remember the task force was headed up by Ran Quail. There are also officials from the Public Service Commission, including the president, Scott Serson.
They are not here to amplify their previous testimony or to enter into a substantive discussion of amendments of the various clauses of the bill. I think the Chair ought not to receive suggestions or questions of that kind. However, if there are technical or factual questions on particular aspects of the bill, when we get to them, we can invite one or other of those officials to come forward to the table to deal with those. I am sure that situation will not be abused; in other words, we are not back to a situation where we are hearing from witnesses and examining witnesses. They are here to help us with technical and factual matters.
Let us begin with the amendments of Senator Oliver concerning human rights. I understand that there are two of them. If you would, Senator Oliver, have the amendments been circulated?
Some Hon. Senators: No.
Senator Day: We have not seen them.
The Chairman: Senator Oliver, kindly move your first amendment and then I will invite debate and discussion on it. I will invite you and others to speak to it, so move your amendment and then speak to it if you wish, and I will invite others to speak to it.
Senator Oliver: Could I speak to it for two minutes and then move it, to put it in context?
The Chairman: As you wish, of course.
Senator Oliver: You will recall that when the minister was here I asked three questions. The first was about human rights. I said that the chairman of the Human Rights Commission had commissioned a legal opinion from Professor Ed Ratushny, and he argued rather convincingly that the bill's provisions related to human rights issues and the corresponding role of the commission and the Human Rights Tribunal do not reflect an appreciation of the fundamental nature of human rights legislation in Canada today.
The crux of the problem is that Bill C-25, as currently drafted, transfers human rights adjudication in relation to the public service to an arbitration process, which is limited in its capacity to fulfil its role. As Professor Ratushny testified, the result will be to invite serious legal and constitutional challenges in the courts, which is really not what we would like. Rather than be forced to make an amendment a few years down the road as the result of a court decision, we have an opportunity to fix the legislation now.
This amendment that I will now read would replace the ability of the Human Rights Commission to intervene with the right to remove exceptional cases from this process and to deal with them as human rights cases. I move:
That Bill C-25 be amended in clause 2,
(a) on page 88, by replacing lines 37 to 40 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to it in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed.;
(b) on page 91, by replacing lines 9 to 12 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed; and
(c), on page 92, by replacing lines 26 to 29 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed.
The Chairman: Thank you senator. Colleagues, would you like to debate this matter?
Senator Gauthier: I have a question of explanation.
[Translation]
If I understand correctly, the Human Rights Act stipulates that every available recourse must be exhausted before a case can be filed with the Human Rights Commission.
If the Staffing Tribunal or the Public Service Tribunal has, according to the amendment, an obligation to make its position known beforehand, it must do so. In other words, the employee has to exhaust every recourse available to him or her before going to the Human Rights Commission.
Your amendment appears to get around this provision. Am I mistaken?
[English]
Senator Oliver: No. Do not forget that Professor Ratushny, Consultant to Canadian Human Rights Commission, said that he had concerns that he did not want to invoke administrative law principles of bias. One of the ways to avoid bias is to have human rights matters addressed by a Human Rights Tribunal without having the Human Rights Tribunal go before another tribunal to raise human rights issues.
The second major concern was that people who hear human rights matters under the statute are specially trained and have the sensitivities to deal with human rights matters, whereas arbitrators do not have and are not possessed of that same training. For those reasons, he felt that it was better to give the Human Rights Commission the power to deal with human rights matters first. I do not think that is skirting it, senator.
Senator Gauthier: I understand. If the Human Rights Commission would hear a complaint or grievance on human rights before the public servant in question has explored all other avenues, and there are other avenues, he could go to the public service tribunal for example. What if the commission says that the employee has not explored all the avenues available and therefore, it will not hear the complaint or grievance?
If I read your amendment correctly, they are short-circuiting the process by going directly to the Human Rights Commission. I do not mind that and I agree that some people on the public service tribunal may not have the professional training or the required expertise to handle human rights issues. I do understand that.
I also understand that the Human Rights Commission has offered to train these people. I am not opposing this amendment but I am asking whether an employee would be short-circuiting the system by going directly to the Human Rights Commission?
Senator Oliver: No. Do not forget that the Human Rights Commission is only going to hear one kind of hearing. They would not hear a public service complaint involving labour law issues. Rather, it would hear the human rights component of the complaint or grievance. Therefore, it would be impossible for the Public Service Commission to subsequently say, ``I am sorry, you cannot come here because you have not tried and heard all the other issues.'' The only issue that would be heard before a human rights tribunal would be a human rights issue, not other Labour Code issues or employment issues.
Senator Gauthier: I will take your word for it.
Senator Kinsella: Honourable senators, this is a serious matter. Those who have been studying the bill carefully and focusing on this particular provision have to refer to the Canadian Human Rights Act as they consider the proposed Bill C-25. The purpose of the Canadian Human Rights Act is to eradicate discrimination in the federal areas of jurisdiction to deal with things such as employment and all terms and conditions of employment, public accommodations, services, and contracts. The Human Rights Act of Canada and the provincial Human Rights Acts are nothing more than anti-discrimination statutes. They had replaced the old Fair Employment Practices Acts, which are anti-discrimination statutes. One has to understand it and we have to be extremely careful when we start dismantling what Parliament had adopted when it enacted the Human Rights Act and the anti-discrimination machinery that was put in place.
That machinery included transferring the awesome burden that employees or prospective employees would have to carry on their shoulders when faced with racial discrimination when applying for jobs or promotions in the public service. If they did not get the job, they were without employment. They were in a very ill-placed situation: Without employment — because they had been discriminated against when trying to get employment — how would they pay the lawyer if they do not have the job? That is why, in the public interest — dealing with discrimination was wrong and bad for the corporate soul of the country — a Crown agency would take carriage of the whole complaint. It was taken off the shoulder of the complainant who was, in his or her mind, the victim of discrimination but did not have the wherewithal to do the investigation. It was in the public interest that the Human Rights Commission would do an investigation. If there were grounds and if the grounds involved such things as a misunderstanding or a miscommunication, then there would be an obligation in the Human Rights Act that the Human Rights Commission must, by statutory duty, make every effort to effect a settlement of the matter complained of.
We have, in the Human Rights Act, a very special agency that serves a very special, social justice function. Under this bill, we have seen that there is a desire to change the hiring practices and the management of human resources. Good testimony was made before us about why the government feels that this is important. I think a good case has been made to streamline and provide greater efficiency, et cetera. They are setting in place a mechanism for appeal should someone feel that they are being ill-treated in the area of human resources — job acquisition or promotion — he or she can go to this new tribunal.
If the allegation were such that someone did not get a job at Heritage Canada or another department and believed that it was because of the colour of his or her skin, that would be proscribed directly in the Human Rights Act. This is why it is not good enough.
On page 92 of the bill, the reference to adjudication section 222.(2) states: ``The Canadian Human Rights Commission has standing in adjudication proceedings...'' On page 91, section 217.(2) states, ``The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions...'' On page 88, section 210.(2) states, ``The Human Rights Commission has standing...''
``Standing'' is not good enough. We need to have our anti-discrimination process and all of its associated parts protected so that the person who goes before the Human Rights Commission is protected. This is why Senator Oliver's motion and amendment will improve tremendously Bill C-25 and do so in a manner that would strengthen our national resolve to eradicate racial discrimination and other forms of discrimination. Read very carefully what Senator Oliver is proposing in his amendment. It states that the Human Rights Commission has not only standing but it may deal with the issue, as if it were a complaint made directly under the Human Rights Act.
That is a big difference. Parliament has given the responsibility to people to resolve discrimination with all of the special reasons for doing so. They do involve, as I mentioned, not only the investigative part but also the settlement part and the conciliation part.
Honourable senators, I can tell you that over 95 per cent of complaints received by the Canadian Human Rights Commission and by the Human Rights Commissions in every jurisdiction of Canada are settled through conciliation and the settlement function. They do not all go to boards of inquiry in most of the provinces, or to the Human Rights Tribunal under federal statute. Why would we not want to have the people who know what they are dealing with deal with this?
I think this is a very friendly amendment to strengthen Bill C-25 and to prevent any kind of eroding — which I know is not the intent of the government — to the Human Rights Act, that which could very well be an unintentional effect. I would encourage honourable senators to support this motion in amendment.
Senator Day: As a point of clarification to Senator Oliver, the wording of this proposed amendment says that the Canadian Human Rights Commission ``may deal.'' That does not say it will deal, and in the second section, it says, ``does not decide to proceed.''
Senator Oliver: It gives them discretion.
Senator Day: Does that contemplate that there could be parallel hearings going on with this issue? The Human Rights Commission may deal with it and the grievance process may deal with it and you have two things going down dealing with the same issue and applying the same Human Rights Act?
Senator Oliver: Not at all.
Senator Day: This is committee and this is an amendment I have not seen until now and it says, ``may deal.''
Senator Oliver: It means that the Human Rights Commission can look at it and it may make the determination on looking at it that this is not in fact a human rights issue, but an issue that should go to the other tribunal. It gives them the discretion to avoid duplication and waste of time, money and resources.
Senator Day: The individual employee who has made a complaint has elected to go by way of the grievance procedure that is provided for. Notice must be given under the act, which is what we are proposing, to the Human Rights Commission and they can intervene. Your proposal says the Human Rights Commission ``may deal'' with the issue, but it does not say to the exclusion of the grievance process.
Senator Oliver: It says, ``if it is in the opinion that it is in the public interest to do so.'' It gives them the discretion. If it is not in the public interest, that is why it is ``may.'' It is permissive.
Senator Day: It gives permission to deal with it, but not to the exclusion of the grievance process dealing with it as well. Therefore, we will have two different bodies dealing with the same issue. My difficulty with this amendment is that we could have both bodies applying human rights on the same issue with the same parties, with two different results coming down.
Senator Oliver: With respect, it does not mean that at all. In terms of statutory interpretation, where you see the word ``may,'' in interpretation, it means that it is permissive. If you had put the word ``shall,'' which makes it mandatory, which is the opposite to ``may,'' it would mean they could not make the determination whether it would be in the public interest. It would make the whole thing useless.
Senator Day: I do not want to get into an argument on statutory interpretation. However, in my respectful submission, if you wanted the Human Rights Commission to have the option of dealing with this exclusively, you would have to say ``in which event the issue in relation to human rights shall not proceed by way of a grievance procedure provided for.''
Senator Oliver: They have to have the right to make the determination of whether or not it is in the public interest.
Senator Day: This issue was dealt with after Professor Ratushny appeared. Was it Bill Pentney who appeared with the minister and had dealt with that same issue? He pointed out that some of the leading cases in relation to human rights have come from tribunals other than the Human Rights Commission and he saw no difficulty with respect to other tribunals dealing with human rights issues and dealing with them competently.
Senator Oliver: Professor Ratushny gave examples of other tribunals that dealt with human rights issues that botched them up very badly. It is in his major opinion.
Senator Day: I understand and I read his comments. Based on the minister's submissions when she dealt with this and my concerns about the wording of this amendment, I will have to vote against it, with all due respect.
The Chairman: Senator Gauthier?
[Translation]
Senator Gauthier: How can we protect the impartiality of the Human Rights Commission? If the Human Rights Commission is informed and aware of what is going on, by asking it to get involved in that matter, might this impact impartiality? The commission must keep its impartiality.
I am not familiar with the law. Is it risky to adopt a motion or an amendment stating that the party who raises an issue may or must inform the Human Rights Commission that this is a matter that comes under its jurisdiction? If it were to do that, the commission will cross its arms and request to proceed.
According to Senator Oliver, the Human Rights Commission can deal with the issue directly. That is why I think that its impartiality will be jeopardized if it proceeds in that matter.
I had never seen these amendments until now.
Senator Day: I have no response to this question.
[English]
Senator Oliver: I have nothing further to say.
[Translation]
Senator Beaudoin: Ninety-five per cent of the time, the word ``may'' means ``peut'', but there may also be another connotation.
The point raised by Senator Gauthier does not bother me because the Human Rights Commission has a role to play. We are not preventing the commission from fulfilling its role in accordance with its principles of independence. I do not see any problems as far as that is concerned. There are avenues given to the courts and to the commissions, without intervening in their powers. I am not afraid for the independence of the commission, it can fulfil its role.
[English]
Senator Kinsella: If anything, this amendment would give greater dignity and independence to the Canadian Human Rights Commission. By the statute, it would only make a determination in terms of what is in the public interest and that others are making assessments about whether or not discrimination has occurred. The commission, as is presently in the bill, is only there as another intervener, just having standing. That is not the role of the Canadian Human Rights Commission. The Human Rights Commission is not an amicus curiae. The Human Rights Commission has the special responsibility to eradicate racial and gender discrimination, et cetera, in the public interest. If an issue comes up in the staffing process under Bill C-25 and the commission determines that there is a major human rights issue that has great public implications, they will seize the case and go through the process of investigation, conciliation and settlement — and if no settlement, final adjudication.
In response to Senator Gauthier's valid concern, I think that this kind of amendment strengthens the independence of the commission, whereas what is in the bill right now forces the Human Rights Commission into some kind of an amicus curiae role, which is not what the Human Rights Act provides for.
The Chairman: Colleagues, are you ready for the question?
Hon. Senators: Question!
Senator Kinsella: Can we have a roll call as to who is eligible to vote?
The Chairman: Are you asking for a role call vote, senator?
Senator Kinsella: Who are the voting members of the committee?
Mr. Tõnu Onu, Clerk of the Committee: Senators Biron, Kinsella, Day, Beaudoin, Ferretti Barth, Finnerty, Gauthier, Hubley, Mahovlich, Murray, Oliver and Wiebe.
Senator Kinsella: For the record, can I point out that I am sitting as a regular member of the committee and not as an ex officio member, because my colleague the Deputy Leader of the Government and I do not vote in an ex officio capacity unless the other is here.
Senator Day: We will see that you get a vote.
The Chairman: Senator Oliver moves that Bill C-25 be amended in clause 2 a) on page 88. Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the motion please raise your right hands.
All those opposed to the motion, please raise your right hands.
Mr. Onu: Three in favour, seven against.
The Chairman: I declare the amendment defeated.
Senator Oliver: Mr. Chairman, I have a second human rights amendment —
The Chairman: Fine, Senator Oliver, please proceed.
Senator Oliver: This amendment is to the Public Service Employment Act portion of Bill C-25 to put the same amendments that have been just discussed and suggested by Professor Ratushny on behalf of the Canadian Human Rights Commission for the Public Service Labour Relations Act of the bill at clause 2, pages 88, 91, and 92. I move:
That Bill C-25 be amended in clause 12, on page 139, by replacing lines 1 to 4 with the following:
(6) The Canadian Human Rights Commission may deal with an issue referred to in subsection (5), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the proceedings before the Tribunal shall be suspended on the request of the Human Rights Commission.
(6.1) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the proceedings before the Tribunal are suspended, the proceedings before the Tribunal shall be resumed.
The Chairman: Thank you, senator. The wording is identical to the previous one except it proposes to amend a different act. The wording and the purpose obviously being identical, I presume the arguments — pro and con — are likewise identical. Does anyone have anything to add? Colleagues are you ready for the question?
Hon. Senators: Question!
The Chairman: Senator Oliver moves that Bill C-25 be amended in clause 12 on page 139 by replacing lines one to four with — Shall I dispense?
Hon. Senators: Dispense.
The Chairman: All those in favour of the motion will please raise your right hands. All those opposed to the motion will please raise your right hands.
Mr. Onu: Three in favour and eight against.
The Chairman: Three in favour, eight against. I declare the motion lost.
Honourable senators, let us proceed. We are grouping these.
[Translation]
Senator Gauthier, you said that you had four draft amendments. I would invite you to move the first amendment.
Senator Gauthier: The Commissioner of Official Languages is a senior official of Parliament. She appeared before the committee to discuss Bill C-25. She suggested some amendments which, in my opinion, are serious and appropriate. As parliamentarians, I believe that we must listen to Parliament's senior officials.
Personally, when I chaired the House of Commons Public Affairs Committee, I always listened to what the Auditor General of Canada had to say because I found that he gave Parliament good advice. This also holds true for the Commissioner of Official Languages; she gives good advice. My amendments will not come as a surprise, these are the amendments that the Commissioner of Official Languages suggested and which I support.
Do you want me to table the four amendments at the same time?
The Chairman: No, we will be voting on them separately. Go ahead with your first amendment.
Senator Gauthier: My first amendment refers to clause 12, on page 127 of the bill. I move that section 33.1 be added to clause 33, and it would read as follows:
An advertised appointment process must be communicated in both official languages.
The Commissioner of Official Languages suggested this amendment because the federal public service is a big organization that must announce appointments and competition notices in both official languages. This is currently being done, but nothing in Bill C-25 guarantees that this procedure will continue.
People will say that the Official Languages Act does exist. Yes, clause 16 of the act does indeed clearly mention the equality of the two languages. I support this amendment because I do not want to give the benefit of the doubt to all of the public service. I really feel that it is important that we guarantee that the advertised appointment process will always be communicated in both official languages.
The Chairman: Thank you, Senator Gauthier. You have duly moved your amendment.
Senator Beaudoin: I totally agree and I would add a comment pertaining to this amendment. It is not only the Official Languages Act that advocates the equality of the two official languages. Section 16 of the Canadian Charter of Rights and Freedoms does so as well. In my opinion, this is one more reason to agree to this amendment. We know what the Charter means, it is very difficult but it is imperative.
The Chairman: Are there any further interventions?
[English]
Senator Day: I have every bit of respect for my colleague Senator Gauthier on this issue. However, I want our colleagues all to understand that the amendment that was made in the House of Commons to clarify the issue in the preamble to the law to which we are referring, notes that the Government of Canada is committed to a public service that embraces linguistic duality that is characterized by fair and transparent employment practices.
That is very clearly there. There are other specific laws that deal with issues of linguistic duality in Canada. We are all very supportive of those and certainly no institution moreso than the Senate of Canada.
In my view, the general principles that are stated in this law are what we should be striving for. With this preamble, my view is that the amendment is not necessary.
[Translation]
Senator Kinsella: I would like to say a word about the legislative process. The commissioner has come to testify at hearings. As an officer of Parliament in charge of official languages, she has made some very serious recommendations. These recommendations were not suggested by us, but by the Commissioner of Official Languages.
In her testimony, the commissioner pointed out that there was an oversight in the bill. As legislators, if one of our senior officials tells us that there is an oversight, albeit unintentional, which may result in consequences, we have to take this into account.
I come from a bilingual province, and I keep abreast of what is going on with our official languages on a daily basis. As a university professor, I have students who want to pursue a career in the public service.
If these students do not receive notification in their language of work, in the language in which they were educated, this is a mistake, and that is the well-intentioned request made by the Commissioner of Official Languages and Senator Gauthier.
We have a responsibility both to do our duty and to make amendments. This is also one of the duties of the legislative committees. I support Senator Gauthier's motion.
Senator Gauthier: I have nothing further to add, everything has been said on this issue.
The Chairman: Are you ready, honourable senators, to vote on this amendment?
[English]
Senator Kinsella: We would like a roll call on this vote.
The Chairman: Do honourable senators wish to have a recorded vote?
Hon. Senators: Agreed.
[Translation]
The Chairman: It is moved by the Honourable Senator Gauthier — That Bill C-25 be amended, at clause 12, page 127, by adding section 33.1
[English]
The clerk will now call each senator by name and each senator will indicate yea, nay or abstention.
Mr. Onu: Senator Biron?
Senator Biron: Abstention.
Mr. Onu: Senator Kinsella?
Senator Kinsella: Yea.
Mr. Onu: Senator Day?
Senator Day: Nay.
Mr. Onu: Senator Beaudoin?
Senator Beaudoin: Yea.
Mr. Onu: Senator Ferretti Barth?
Senator Ferretti Barth: Nay.
Mr. Onu: Senator Finnerty?
Senator Finnerty: Nay.
Mr. Onu: Senator Gauthier?
Senator Gauthier: Yea
Mr. Onu: Senator Hubley?
Senator Hubley: Nay.
Mr. Onu: Senator Mahovlich?
Senator Mahovlich: Nay.
Mr. Onu: Senator Oliver?
Senator Oliver: Yea.
Mr. Onu: Senator Wiebe?
Senator Wiebe: Nay.
Mr. Onu: Yeas 4. Nays 6. Abstention 1.
The Chairman: I declare the motion defeated. Senator Gauthier, do you have another amendment to propose in respect of official languages?
[Translation]
Senator Gauthier: My second amendment deals with an issue that is a little more exciting. The amendment pertains to the tribunals that are involved in my amendment.
We have numerous federal tribunals. Over the past few years — since the Charter — the members of these tribunals must be capable of understanding the language of the accused without the services of an interpreter. My position is clear on the matter. The Commissioner of Official Languages is right when she suggests the amendment that reads as follows:
The Governor in Council shall ensure that members of the tribunal, as a group, are able to hear complaints in both official languages, in accordance with the provisions of section 16 of the Official Languages Act.
This clause is clear, all the tribunals must have this capability.
This amendment moves that the law include an obligation for the Governor in Council, who takes advice from the cabinet... probably this will be the Privy Council that will be making the suggestion that Senator Kinsella be appointed to the Public Service Tribunal.
I want this entity, the Privy Council or the authority, to be compelled to ensure that the judges sitting on these tribunals will be able to understand Canada's two official languages.
I will not give up on this, because public servants are not getting good service. For instance, if Acadians are called to testify, in their region, before a court that does not understand the Acadian accent, or that does not understand my accent from Ontario, they do not get good service. Quebecers from Chicoutimi speak a different kind of French than the kind I speak and that Acadians speak. I demand that judges be able to understand the plaintiff's language. This is reasonable.
I simply propose that:
The Governor in Council shall ensure that members of the Tribunal are able, as a group, to hear complaints in either one of this country's official languages.
The Commissioner of Official Languages sent us a letter, dated September 15, that you all received. On page 4, she gives a list of the courts she consulted. Let me read the text because it is important:
All of the tribunals which responded indicated their support, namely the Canada Industrial Relations Board, the Canadian International Trade Tribunal, the Military Police Complaints Commission, the Canadian Transportation Agency, the Canadian Forces Grievance Board, the Canadian Artists and Producers Professional Relations Tribunal, the Canadian Human Rights Tribunal, the Copyright Board and the Competition Tribunal.
This is a very impressive list. The commissioner was supported by all these people who told her to ensure that the people in the tribunals can understand both official languages.
The Chairman: Do any other senators wish to intervene?
Senator Biron: When you say ``as a group,'' do you mean that each of the members individually or all the members as a whole must understand?
Senator Gauthier: No, each and every member.
Senator Biron: Each and every member.
Senator Gauthier: This is what is written. I am sorry. I require that the judges as a group understand. I do not require that each judge be bilingual, but the group should be able to speak both official languages. This is crucial.
[English]
Senator Day: I normally like to hear the arguments of my colleagues.
The Chairman: You will come back, senator.
Senator Day: I find myself in a position where I may appear to be disagreeing with the fundamental principles underlying duality and bilingualism in our country. I think that none of us who serve in the Senate feel that way.
The Official Languages Act is clear and the principles are clear. In my view, it is neither necessary nor desirable, in each statute that comes along, to repeat what is already covered in other legislation that is specifically directed to that point. With the greatest of respect, I will vote against this proposed amendment by Senator Gauthier.
[Translation]
Senator Kinsella: As a senator from a bilingual province, I think that we must always listen carefully to each and every proposal of the Official Languages Commissioner; but as I just said, the other amendment proposed by the Official Languages Commissioner was the amendment that would have added to section 88 the requirement whereby the Governor in Council must ensure that members of staffing tribunals be able, as a group — this is important — to hear complaints in either one of the official languages.
I did listen to the argument put forward by the senator who intervened before me, but as far as I am concerned, it is also important to emphasize Canadian official language requirements in this legislation. Legislators must go through the process of emphasizing the importance of statutory requirements in this particular act, in this particular process, and they must be able to hear cases in both official languages. This must be specified in the legislation.
Once again, this is not our amendment, it was proposed by our witness, the Commissioner of Official Languages.
Senator Beaudoin: I have no problem with that. The Official Languages Act is a federal law, it is one of the basic federal laws and federal legislation applied to federal matters must be in both official languages. This is quite clear, and with regard to the Public Service Commission, if this is what they mean, then it is the same thing.
How can you have merit in the Public Service Commission if the bilingual policy is not even respected? This does not make sense. Thus, I entirely agree with that.
[English]
The Chairman: Are you ready for the question?
Some Hon. Senators: Question!
Senator Kinsella: Can we have a roll call, please?
The Chairman: Senator Gauthier moves that Bill C-25 be amended at clause 12, page 145 by adding section 5.1.
The Governor in Council shall ensure that members of the tribunal, as a group, are able to hear complaints in both official languages, in accordance with the provisions of section 16 of the Official Languages Act.
Clerk, call the roll.
[Translation]
Mr. Onu: Senator Biron?
Senator Biron: I abstain.
Mr. Onu: Senator Kinsella?
Senator Kinsella: Yes.
Mr. Onu: Senator Day?
Senator Day: No.
Mr. Onu: Senator Beaudoin?
Senator Beaudoin: Yes.
Mr. Onu: Senator Ferretti Barth?
Senator Ferretti Barth: No.
Mr. Onu: Senator Finnerty?
Senator Finnerty: No.
Mr. Onu: Senator Gauthier?
Senator Gauthier: Yes.
Mr. Onu: Senator Hubley?
Senator Hubley: No.
Mr. Onu: Senator Mahovlich?
Senator Mahovlich: No.
Mr. Onu: Senator Oliver?
Senator Oliver: Yes.
Mr. Onu: Senator Wiebe?
Senator Wiebe: No.
[English]
Mr. Onu: In favour, four; against, six; and one abstention.
The Chairman: I declare the amendment lost.
[Translation]
The Chairman: Senator Ferretti Barth, you do know that all you have to do is indicate that you want to intervene; but there cannot be any debate during a vote.
Senator Gauthier, you have a third amendment.
Senator Gauthier: My third amendment deals with language training. Those who followed the debate know that this issue took a long time to settle. It took time to get a clear and precise answer. Yesterday, we obtained it from the minister, Ms. Robillard, who came to the committee. She told us that training in the future will be done at a national school, the public service school. This is perfect.
The question we put was the following: Will public servants be sure that language training will be available?
This amendment simply proposes:
To amend clause 24 of the bill, page 172, by adding subsection 4 (e.1):
The objects of the School are:
(e.1) provide language training so that public servants can reach the proficiency levels required for positions designated bilingual in order to ensure that the Official Languages Act is implemented and to help employees achieve their career goals.
This is clear to me. I do not know what else to add, the text seems crystal clear.
The Chairman: Thank you, senator. You read the text of your amendment. Does everyone have a copy of Senator Gauthier's draft amendment?
[English]
Colleagues, does anyone wish to speak to this?
Senator Day: The minister made it clear that there is no intention to reduce the training that is currently being given. I read earlier the preamble that very clearly enunciates the linguistic duality. The objects and powers clause to which Senator Gauthier has referred must be taken in the context of the principles that are in the preamble. The clause says ``to formulate and provide training, orientation and development programs for public sector managers and employees...'' That is according to the preamble.
We do not have to micromanage. If it is not being done then we will be ensuring that things change. I do not believe that this is a necessary amendment.
The Chairman: Other interventions?
Senator Kinsella: I cannot buy the argument that has been made. You have a section in a bill that is entitled ``objects and powers of an entity.'' On page 172 of the bill is the heading ``objects and powers.'' They are referring to the school.
The make a list of the objects of the school and they leave out a very important part.
I understood the minister, on Tuesday, to testify that they are going to move the official language training unit that is currently located in the Treasury Board over to the school.
Senator Day: Yes.
Senator Kinsella: She did say that?
Senator Day: Yes.
Senator Kinsella: That will be done, which is why at the beginning I was not going to say anything. In this statute, there is a clause laying out the objectives, and they do not put in as a statement of objective the major unit that the minister has told us that they will put over there. It boggles my mind as to why you would not clearly have that under your list of objectives when one third of the organization — if not more in terms of person-years and budget — will be transferred to them.
If it were there, the argument that my colleague has made would resonate stronger with me much stronger. However, because you have this list, and you leave out something — I wish I had the numbers before me, but I think the budget for official language training in that unit that currently is located in the Treasury Board is quite substantial. The Government of Canada spends a lot of money on official language training, and rightly so. However, the point is this: We are moving this over to the school, and it is a big, big piece that is going there — it is where it belongs and we all agree on that — but why would not we have it on the list of objectives? It is not even mentioned.
It may not be absolutely necessary, but it really does not make very good drafting sense that you would not have it there. It is a poor piece of drafting without it, at least.
The Chairman: Colleagues?
Some Hon. Senators: Question!
The Chairman: Question? Are you calling for a roll call vote again, senator?
Senator Kinsella: On official languages, yes.
The Chairman: Very well.
[Translation]
The Chairman: Senator Gauthier moves that section 24 on page 172 of Bill C-25 be amended by adding the following paragraph —
[English]
Shall I dispense?
Some Hon. Senators: Agreed.
The Chairman: The clerk will call the roll of members.
Mr. Onu: Senator Biron?
Senator Biron: Abstain.
Mr. Onu: Senator Kinsella?
Senator Kinsella: Yea.
Mr. Onu: Senator Day?
Senator Day: Nay.
Mr. Onu: Senator Beaudoin?
Senator Beaudoin: Yea.
Mr. Onu: Senator Ferretti Barth?
Senator Ferretti Barth: Nay.
Mr. Onu: Senator Finnerty?
Senator Finnerty: Nay.
Mr. Onu: Senator Gauthier?
Senator Gauthier: Yea.
Mr. Onu: Senator Hubley?
Senator Hubley: Nay.
Mr. Onu: Senator Mahovlich?
Senator Mahovlich: Nay.
Mr. Onu: Senator Oliver?
Senator Oliver: Yea.
Mr. Onu: Senator Wiebe?
Senator Wiebe: Nay.
Mr. Onu: In favour 4, against 6 and one abstention.
The Chairman: I declare the amendment lost.
[Translation]
The Chairman: Senator Gauthier, you have a fourth draft amendment.
Senator Gauthier: The last amendment I will move with regard to official languages deals with section 77, on page 142. When the commission proposes an appointment, it is responsible for that.
I move an amendment to page 142, paragraph 77(1)(c), regarding cases where the commission proceeds to make an internal appointment. Let me add this — a complaint can be made on the following grounds:
(d) the failure of the Commission to communicate the advertised appointment process in both official languages, as required by subsection 33(2).
An appointment can be made in a given region and a public servant might feel that his rights have been violated because the appointment did not take into account the grounds for challenge found in section 77. Public servants must be protected and the bill must specify all grounds for complaints, including the failure to communicate any internal appointment process in both official languages. I think that this is a serious matter, because some people are unjustly excluded.
I would like to ensure that these grounds be considered serious enough for the commission to hand down decisions about them. I do not know if I have been sufficiently clear.
The Chairman: Senator Gauthier, when you speak of the failure of the commission to communicate the internal appointment process in both official languages, as required by subsection 33(2), are you talking about an amendment that refers to the draft amendment that was already debated by this committee this evening? If so, the draft amendment has already been disposed of by now. Is this possible?
[English]
It is a consequential amendment to an amendment that has been defeated, I think.
Senator Gauthier: If you do not try, you do not get it.
The Chairman: We are trying to be helpful here, senator. I note that on page 142, complaints to tribunal, if you look at 77(1)(c), it speaks of ``the failure of the commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).'' I will now look for subsection 37(1).
Well that is interesting. Perhaps we can be helpful here. Proposed section 37(1) says that ``an examination or interview, when conducted for the purpose of assessing qualifications ... shall be conducted in English or French or both at the option of the candidate.'' Proposed subsection (2) further states ``an examination or interview, when conducted for the purpose of assessing the qualifications of the candidate in the knowledge and use of English or French or both, or of a third language, shall be conducted in that language or those languages.''
No, I do not think so. I think your amendment is out of order. I am afraid I cannot save your amendment, senator.
Senator Gauthier: I will rest my case.
The Chairman: He rests his case; as does the Chair.
Senator Beaudoin: What is the situation?
The Chairman: The situation is that he had an amendment that truly was consequential upon passage of a previous amendment that he had proposed. Unfortunately, his previous amendment was defeated, so the consequential amendment is not in order. It is not applicable.
[Translation]
Senator Day: I applaud you for your efforts, Senator Gauthier.
[English]
The Chairman: Let me see where we go from here. I will turn to Senator Kinsella. If I am well informed — and I trust I am — you have four amendments on whistle-blowing; you have one main amendment and three that appear to be consequential amendments. Is that the case?
Senator Kinsella: That is correct, Chair. The main motion would be speaking to clause 2 on page 99 of the bill. This amendment, which can be circulated to honourable senators by the clerk, would add a new part, 2.1, to provide for disclosure by public servants of wrongdoing in the public service.
The wording of this amendment to this main motion and, should this motion be carried, the three consequential motions I would make would have us exactly where we were with Bill S-11 and where we are with Bill S-6. Honourable senators will recall Bill S-11 was unanimously passed by this very committee and reported to the Senate on Wednesday, March 28, 2001. I wish to place on the record that the Senate adopted Bill S-6. The entire Senate adopted the report from this committee.
What I would be moving as a main amendment and the three consequential amendments will place us exactly where we were when this committee adopted the whistle-blowing bill that we had before us, with our committee report adopted unanimously by the committee and sent to the Senate. The Senate adopted it, and it was at third reading when the House prorogued.
Honourable senators, the report of the committee was the fourth report. It is dated Wednesday, March 28, 2001. Honourable senators will recall that the committee, with members from both sides, offered amendments to the bill that had been before us. Those amendments were accepted and the bill, as amended, constituted the unanimous report of this committee and went back to the house. The house adopted it.
That is where we were. One might ask some interesting procedural questions in terms of a legislative committee having dealt with a bill, adopting it unanimously and then having that report adopted by the chamber itself with bill then sent to third reading by the chamber. The procedural issue is that when a matter has been adopted by the house, the binding force of the standing order depends on the desire of the house. That decision, once taken to be annulled, would require in principle some actus contraries. Not adopting what we already adopted would clearly be an actus contrarius, and Rules of the Senate require that such a vote would require a two-thirds majority.
Therefore, for the amendments that I will propose to be rejected, when it is clear that many members of this committee seem to be instructed to vote against even benign amendments, as a matter of procedure it will require — and we still have the numbers — a two-thirds majority to reject these amendments given that this committee has already adopted these measures.
The Chairman: Honourable senators, is there a comment on the procedural point raised by Senator Kinsella?
Senator Day: I understand that we do have the reference on my colleague's bill, and in beginning my comments, I would like to acknowledge Senator Kinsella's leadership in this particular area of integrity and, as we are wont to describe it sometimes in English, whistle-blowing and whistle-blowing legislation. We appreciate the leadership that he has shown in that area.
I do not accept his point. We are dealing with Bill C-25 here. We are not dealing with my colleague's bill, and I do not accept the procedural impediment that he describes.
[Translation]
Senator Beaudoin: I am in favour of the whistleblower principle. I believe that the amendments that have been moved and considered are adequate.
Whistleblowing is a very delicate matter, but it is justifiable. We are limited by the procedure and our way of proceeding is, in my opinion, satisfactory.
[English]
Senator Mahovlich: I thought we all agreed that the whistle-blowing is a separate thing for which there will be more study. It was not going to be put in Bill C-25. That was my understanding and now we are wasting time here with this. It was decided. We listened to all those witnesses and it was very complicated and we were going to do it separately. There was going to be a separate study.
The Chairman: On the procedural point, first, the amendment itself is in order. The chair has no difficulty with that.
Senator Day: It is in order to be dealt with.
The Chairman: Yes, the amendment is in order. The issue of whistleblowing and so forth was opened up by the House of Commons committee, which passed an amendment on this matter, so there is no difficulty with presenting the amendment to the committee.
On the procedural point raised by Senator Kinsella, it certainly is an actus contrarius.
As Senator Kinsella has pointed out, that Bill S-11 got through second reading committee, and to third reading but was never voted at third reading. Since that time, there has been a prorogation — in fact, I believe it was a dissolution — and we are in a new Parliament. What Senator Kinsella is doing with this bill, in effect, is what governments and parliamentarians often do after a dissolution or prorogation. They are reintroducing a bill that was on the order paper at the time of the prorogation. So far as this amendment is concerned and so far as his original bill is concerned, this committee is addressing it in, if I may, employ another Latin term, ab initio or de novo. I do not accept that anything more than a simple majority will be needed either to pass or to defeat this amendment.
Senator Kinsella: Thank you, chair, for your ruling. I will continue to speak on the main amendment that I will propose, and then, if it is carried, three subsequent amendments, the point having been made this committee has already accepted this model.
I would like to place on the record a letter from the Prime Minister, Mr. Chrétien, dated June 11, 1993. Mr. Chrétien, at the time the Leader of the Opposition — the letterhead is the House of Commons, Leader of the Opposition — writes in his letter to Mr. Daryl Bean, national president of the Public Service Alliance of Canada, ``A Liberal government would introduce whistle-blowing legislation in the next Parliament.''
I just place that on the record, copies of which are in the records of this committee because we made reference to it in committee the other day. Honourable senators should know that the current Prime Minister promised that there would be whistle-blowing legislation 10 years ago. This is an excellent opportunity to provide in this bill.
The House of Commons seized themselves of this issue, as the chair has pointed out, by opening up the whistle- blowing issue at this time. It would have been negligent on my part to have not responded. What they were proposing in the House of Commons is now in the bill. To use a Disneyland expression, it is a ``Mickey-mouse'' kind of whistleblowing thing. It does nothing.
We in this committee have done serious work on this issue. In fact, we have been studying it for some three years and we had a bill adopted. I felt it incumbent upon me to bring forward, by way of amendment — without changing a dot over an I or a crossed T — exactly what we had adopted and what the Senate had adopted.
Notwithstanding that I am the least political of all the senators, I understand that from time to time pressures are brought to bear. Ministers do not want to have amendments made to their legislation. Clearly, with the results that met Senator Gauthier's amendments, it is not surprising for the observer to come to the conclusion that people are under marching orders. This amendment probably will not find much favour as well.
Therefore, I will move only my main amendment. If that carries, I would then move the subsequent one. Otherwise, the package does not come together. I do not want to waste honourable senators' time.
Understanding that this is my first substantive motion, I will move:
That Bill C-25 be amended in clause 2, on page 99, by adding after line 8 the following:
PART 2.1
PROTECTION OF WHISTLEBLOWERS
Definitions
238.1 The following definitions apply in this Part.
``Commissioner'' means the commissioner of the Public Service Commission who has been designated as Public Interest Commissioner under section 238.3.
``employee'' has the same meaning as in Part 2.
``law in force in Canada'' means a provision of an Act of Parliament or of the legislature of a province or an instrument issued under the authority of such an Act that is in force the relevant time.
``minister'' means a member of the Queen's Privy Council for Canada who holds office as a minister of the Crown.
``wrongful act or omission'' means an act or omission that is:
(a) an offence against a law in force in Canada;
(b) likely to cause a significant waste of public money;
(c) likely to endanger public health or safety or the environment;
(d) a significant breach of an established public policy or of a directive in the written record of the public service; or
(e) one of gross mismanagement or an abuse of authority.
Purpose
238.2 The purpose of this Part is
(a) to provide for the education of persons working in the public service on ethical practices in the workplace and the promotion of the observance of these practices;
(b) to protect the public interest by providing a means for employees of the public service to make allegations, in confidence, of wrongful acts or omissions in the workplace, to an independent Commissioner who will investigate them and seek to have the situation dealt with, and who will report to Parliament in respect of problems that are confirmed but have not been dealt with; and
(c) to protect employees of the public service from retaliation for having made or for proposing to make, in good faith and on the basis of reasonable belief, allegations of wrongdoing in the workplace.
Public Interest Commissioner
Designation
238.3(1) the Governor in Council shall designate one of the commissioners of the Public Service Commission to serve as Public Interest Commissioner.
Part of role of Commission
(2) The role of the Public Interest Commissioner is a part of the function of the Public Service Commission.
Powers
(3) The Commissioner may exercise the powers of office of a commissioner of the Public Service Commission for the purposes of this Part.
238.4(1) Subject to section 238.9, the Commissioner may make public any information that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner's duties or powers under this Part if, in the Commissioner's opinion, it is in the public interest to do so.
Disclosure of necessary information
(2) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information that, in the Commissioner's opinion, is necessary to.
(a) conduct an investigation under this Part; or
(b) establish the grounds for findings or recommendations contained in any report made under this Part.
Disclosure in the course of proceedings
(3) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information necessary to assist
(a) a prosecution for an offence under section 238.20; or
(b) a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part.
Disclosure of offence
(4) The Commissioner may disclose to the Attorney General of Canada or of a province, as the case may be, information relating to the commission of an offence against any law in force in Canada that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner's duties or exercise of the commissioners duties or powers under this Part if, in the commissioner's opinion there is evidence of an offence.
Not competent witness
238.5 The Commissioner or person acting on behalf or under the direction of the Commissioner is not a competent witness in respect of any matter that comes to their knowledge as a result of the performance or exercise of the Commissioner's duties or powers under this Part in any proceeding other than
(a) a prosecution for an offence under section 238.20; or
(b) a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part.
Protection of Commissioner
238.6(1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith as a result of the performance or exercise or purported performance or exercise of the Commissioner's duties or powers under this Part.
Libel or slander
(2) For the purposes of any law relating to libel or slander,
(a) anything said, any information supplied or any record or thing produced in good faith and on the basis of reasonable belief in the course of an investigation carried out by or on behalf of the Commissioner under this Part is privileged; and
(b) any report made in good fate by the Commissioner under this Part and any fair and accurate account of the report made in good faith for the purpose of news reporting is privileged.
Education
Dissemination
238.7 The Commissioner shall promote ethical practices in the public service and a positive environment for giving notice of wrongdoing, by disseminating knowledge of this Part and information about its purposes and processes and by such other means as seem fit to the Commissioner.
Notice of Wrongful Act or Omission
Notice by employee
238.8(1) An employee who has reasonable grounds to believe that another person working for the public service or in the public service workplace has committed or intends to commit a wrongful act or omission
(a) may file with the Commissioner a written notice of allegation; and
(b) may request that their identity be kept confidential with respect to the notice.
Form and content
(2) A notice under subsection (1) shall identify,
(a) the employee making the allegation, and be signed by that person;
(b) the person against whom the allegation is being made; and
(c) the grounds on which the employee believes that the act or omission is wrongful and has been or will be committed, giving the particulars that are known to the employee and the reasons and the grounds on which the employee believes the particulars to be true.
No breach of oath
(3) A notice by an employee to the Commissioner under subsection (1), given in good faith and on the basis of reasonable belief, is not a breach of any oath of office or loyalty or secrecy taken by the employee and, subject to subsection (4), is not a breach of duty.
Solicitor-client privilege
(4) No employee, in giving notice under subject section (1), may violate any law in force in Canada or rule of law protecting privileged communications as between solicitor and client, unless the employee has reasonable grounds to believe there is a significant threat to public health or safety.
Waiver
(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.
Rejected notice
(6) Where the Commissioner is not able or willing to give an assurance of confidentiality in response to a request made under paragraph (1)(b), the Commissioner may reject the notice and take no further action on it, but shall keep it confidential.
Confidentiality
238.9 Subject to subsection 238.11(5) and any other obligation of the Commissioner under this Part or any law in force in Canada, the Commissioner shall keep confidential the identity of an employee who has filed a notice with the Commissioner under subsection 238.8(1) and to whom the Commissioner has given an assurance that, subject to this Part, their identity will be kept confidential.
Initial review
238.10 On receiving a notice under subsection 238.8(1), the Commissioner shall review it, may ask the employee for further information and may make such further inquiries as, in the opinion of the Commissioner, may be necessary.
Rejected notices
238.11(1) The Commissioner shall reject and take no further action on a notice given under subsection 238.8(1), if the Commissioner makes a preliminary determination that the notice
(a) is trivial, frivolous or vexatious;
(b) fails to allege or give adequate particulars of a wrongful act or omission;
(c) breaches subsection 238.8(4); or
(d) was not given in good faith or on the basis of reasonable belief.
False statements
(2) The Commissioner may determine that a notice that contains a statement that the employee knew to be false or misleading at the time it was made was not give in good faith.
Mistaken facts
(3) The Commissioner shall not determine that a notice was not given in good faith for the sole reason that it contains mistaken facts unless the Commissioner has grounds to believe that there was adequate opportunity for the employee to discover the mistake.
Report
(4) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection 238.8(1) of that determination.
Report to official and minister
(5) Where the Commissioner determines under subsection (1) that a notice was given in breach of subsection 238.8(4) or was not given in good faith and on the basis of reasonable belief, the Commissioner may advise
(a) the person against whom the allegation was made, and
(b) the minister responsible for the employee who gave the notice of the matters alleged and the identity of the employee.
Valid notice
238.12(1) The Commissioner shall accept a notice given under subsection 238.8(1) where the Commissioner determines that the notice
(a) is not trivial, frivolous or vexatious;
(b) alleges and gives adequate particulars of a wrongful act or omission;
(c) does not breach subject section 238.8(4); and
(d) was given in good faith and on the basis of reasonable belief.
Report to employee
(2) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing, and on a timely basis, advise the employee who gave notice under subsection 238.8(1) of that determination.
Investigation and Report
Investigation
238.13(1) The Commissioner shall investigate a notice accepted under section 238.12 and, subject to subsection (2), shall prepare a written report of the Commissioner's findings and recommendations.
Report not required
(2) The Commissioner is not required to prepare a report if satisfied that
(a) the employee ought to first exhaust other procedures available to the employee;
(b) the matter could more appropriately be dealt with, initially or completely, by means of a procedure provided for under law in force in Canada other than this Part; or
(c) the length of time that has elapsed between the time the wrongful act or omission that is the subject- matter of the notice occurred and the date when the notice was filed is such that a report would not serve a useful purpose.
Report to employee
(3) Where the Commissioner has made a determination under subsection (2), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection 238.1(1) of that determination.
Confidential information
(4) Information related to an investigation is confidential and shall not be disclosed, except in accordance with this Part.
Report to minister
(5) The Commissioner shall provide the minister responsible for the employee against whom an allegation has been made, on a timely basis and in no case later than one year after the Commissioner receives the notice, with a copy of the report made under subsection (1).
Minister's response
238.14(1) A minister who receives a report under subsection 238.13(5) shall consider the matter and respond to the Commissioner.
Content of response
(2) The response of a minister under subsection (1) shall specify the action the minister has taken or proposes to take to deal with the Commissioner's report, or that the minister proposes to take no action.
Further responses
(3) A minister who, for the purposes of this section, specifies action proposed to be taken shall give such further responses as are requested by the Commissioner until such time as the minister advises that the matter has been dealt with.
Emergency public report
238.15(1) The Commissioner may require the President of the Treasury Board to cause an emergency report prepared by the Commissioner to be laid before both Houses of Parliament on the next day that the House sits if, in the Commissioner's opinion, it is in the public interest to do so.
Content of report
(2) A report prepared by the Commissioner for the purposes of subsection (1) shall describe the substance of a report made to a minister under subsection 238.13(5) and the minister's response or lack thereof under section 238.14.
Annual report
238.16(1) The Public Service Commission shall include in the annual report to Parliament made pursuant to section 23 of the Public Service Employment Act a statement of activity under this Act prepared by the Commissioner that includes
(a) a description of the Commissioner's activities under section 238.7;
(b) the number of notices received pursuant to section 238.8;
(c) the number of notices rejected pursuant to sections 238.8 and 238.11;
(d) the number of notices accepted pursuant to section 238.12;
(e) the number of accepted notices that are still under investigation pursuant to subsection 238.13(5);
(f) the number of accepted notices that were reported to ministers pursuant to subsection 238.13(5);
(g) the number of reports to ministers pursuant to subsection 238.13(5) in respect of which action satisfactory to the Commissioner has been taken;
(h) the number of reports to ministers pursuant to subsection 238.13(5) in respect of which action satisfactory to the Commissioner has not been taken;
(i) an abstract of the substance of all reports to ministers pursuant to subsection 238.13(5) and the responses of ministers pursuant to section 238.14; and
(j) where the Commissioner is of the opinion that the public interest would be best served, the substance of an individual report made to a minister pursuant to subsection 238.13(5) and the response or lack thereof of a minister pursuant to section 238.14.
Annual report
(2) The Public Service Commission may include in the annual report to Parliament made pursuant to section 23 of the Public Service Employment Act an analysis of the administration and operation of this Part and any recommendations with respect to it.
Prohibitions
False information
238.17(1) No person shall give false information to the Commissioner or to any person acting on behalf or under the direction of the Commissioner while the Commissioner or person is engaged in the performance or exercise of the Commissioner's duties or powers under this Part.
Bad faith
(2) No employee shall give a notice under subsection 238.8(1) in bad faith.
No disciplinary action
238.18(1) No person shall take disciplinary action against an employee because
(a) the employee, acting in good faith and on the basis of reasonable belief, has disclosed or stated an intention to disclose to the Commissioner that a person working for the public service or in the public service workplace has committed or intends to commit a wrongful act or omission;
(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention to refuse to commit an act or omission the employee believes would be a wrongful act or omission under this Part;
(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done in order to comply with this Part; or
(d) the person believes that the employee will do anything referred to in paragraph (a),(b) or (c).
Definition
(2) In this section, ``disciplinary action'' means any action that adversely affects the employee or any term or condition of the employee's employment or adversely affects the employee's opportunity for future employment within or outside the public service, and includes:
(a) harassment;
(b) financial penalty;
(c) affecting seniority;
(d) suspension or dismissal;
(e) denial of meaningful work or demotion;
(f) denial of a benefit of employment;
(g) refusing to give a reference; or
(h) any other action that is disadvantageous to the employee.
(3) A person who takes disciplinary action against an employee within two years after the employee gives a notice to the Commissioner under subsection 238.8(1) shall be presumed, in the absence of a preponderance of evidence to the contrary, to have taken the disciplinary action against the employee contrary to subsection (1).
Disclosure prohibited
238.19(1) Except as authorized by this Part 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 238.8(1) and has requested confidentiality under that subsection, or any other information the disclosure of which reveals the employee's identity, which may include the existence or nature of a notice, without the employee's consent.
Exception
(2) Subsection (1) does not apply where the notice was given in breach of subsection 238.8(4) or was not given in good faith and on the basis of reasonable belief.
Enforcement
Offences and punishment
238.20 A person who contravenes subsection 238.8(4), section 238.17, or subsection 238.18(1) or 238.19(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.
Employee Recourse
Recourse available
238.21(1) An employee against whom disciplinary action is taken contrary to section 238.18 is entitled to use every recourse available to the employee under the law, including grievance proceedings provided for under an Act of Parliament or otherwise.
Recourse not lost
(2) An employee may seek recourse as described in subsection(1) whether or not proceedings based upon the same allegations of fact are or may be brought under section 238.20.
Benefit of presumption
(3) In any proceedings of a recourse referred to in subsection (1), the employee is entitled to the benefit of the presumption established in subsection 238.18(3).
Transitional
(4) Where grievance proceedings are current or pending on the coming into force of this Part, the proceedings shall be dealt with and disposed of as if this Part had not been enacted.
Honourable senators, that is my main motion. I could read it in French, but I think copies of the translation are available.
The Chairman: Those doing simultaneous translation have copies and I assure you that we are able to follow the reading in English and to provide the official translation.
Senator Kinsella moves that Bill C-25 be amended, in clause 2 on page 99. Shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Colleagues, are you ready for the question?
Some Hon. Senators: Question!
The Chairman: All those in favour of the amendment will please raise your right hands.
All those opposed to the amendment will please raise your right hands.
Abstentions, if any?
Senator Gauthier: Abstain.
The Chairman: One abstention.
Mr. Onu: In favour, three.
The Chairman: Four.
Mr. Onu: Only three in favour, six against and one abstention.
The Chairman: I declare the amendment lost.
Colleagues, excuse me for one moment. What is the count, clerk?
Senator Day: The record should show that Senator Mahovlich had to leave before the reading was concluded.
The Chairman: I think the correct reading —
Senator Hubley: It is six to three.
Mr. Onu: No, three in favour. We have Senators Biron, Day, Ferretti Barth, Hubley, Finnerty and Wiebe who voted against. That is six against and one abstention.
The Chairman: One abstention and three in favour.
Senator Day: Correct.
The Chairman: Yes, three in favour.
Mr. Onu: Six against and one abstention.
The Chairman: I declare the amendment lost.
Now, Senator Kinsella, your other amendments —
Senator Kinsella: Were consequential.
The Chairman: Yes, and therefore functus.
If I understand correctly, Senator Kinsella, you have another amendment.
Senator Kinsella: I do not intend to move any amendments because it is clear that the majority is under instructions and I do not want to continue with the charade.
The Chairman: Very well. My information was that you had an amendment on the Public Service Commission.
Senator Oliver, did you have an amendment you wished to propose at this time?
Senator Oliver: Yes. I have one on regional hire.
The Chairman: Please proceed.
Senator Oliver: Many Canadians are frustrated when they learn they cannot compete for a public service position because they live in the wrong part of Canada. In a perfect world, a Canadian from a place like Nova Scotia or Alberta would have to have the same right to compete for a job with Transport Canada in Ottawa as a Canadian living in Ottawa. In far too many cases, you cannot compete for a job unless you have the right postal code.
This amendment would add a new subsection to section 34 that would establish, as a rule, the use of a national area of selection for externally advertised selection processes. It would also grant the Public Service Commission discretion to determine the circumstances under which the use of a national area of selection is not in the best interest of the public service. In other words, managers in Ottawa could not simply decide on their own that they are not going to look at anyone from, say, New Brunswick, Nova Scotia, or Newfoundland. They would have to have good reason that meets the criteria that would be spelled out by the Public Service Commission of Canada.
Therefore, in Bill C-25, clause 12, page 127, I move — That Bill C-25 be amended in clause 12, on page 127,
(a) by replacing line 22 with the following:
34(1) Subject to subsection (1.1), for purposes of eligibility in any; and
(b) By adding after line 30 the following:
(1.1) For purposes of eligibility in an advertised external appointment process, the area of selection, in respect of geographic criteria, shall be national, unless the Commission is of the opinion that a national area of selection is not in the best interests of the public service.
The Chairman: Thank you, Senator Oliver. Colleagues, are there comments on this proposed amendment?
Senator Day: Did you say both amendments?
The Chairman: No, this proposed amendment.
Senator Day: Thank you, Mr. Chairman.
We heard the minister speak on this issue. It is a matter of concern to the minister. The interesting point is that this regional area of selection was at one time intended to protect the regional jobs for the regions to ensure that the jobs would go to someone in the regions. We have moved on from there. The minister has indicated that the Public Service Commission has a four-year plan, which they have published and which the minister has accepted. This law has a five- year review. The plan is to move towards more national selection. There is a movement in that direction already with respect to certain higher-level jobs. I am going to vote against this amendment for that reason. I believe the minister is moving in the right direction and I will give her the chance to do so.
The Chairman: Thank you, senator. Colleagues, other interventions? Senator Oliver?
Senator Oliver: This amendment is trying to bring a bit of equity into the hiring process. Right now, the process discriminates against those who live in the fringe areas of Canada. Unless you live right near Ottawa, the heart of Canada, you are not eligible and you have no crack at the good jobs in the public service. This was just an opportunity to try — with a very simple amendment — to equalize some of the opportunities for all Canadians. It should be done now rather than waiting, as the honourable senator says, for another four years.
The Chairman: Senators?
Some Hon. Senators: Question!
The Chairman: Senator Oliver moves:
That Bill C-25 be amended in clause 12, on page 127:
(a) by replacing line 22 —
Shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: All those in favour of the motion, please raise your right hands.
All those opposed to the motion, please raise your right hands.
Mr. Onu: In favour, three; against, 7.
The Chairman: I declare the amendment lost.
Now, Senator Beaudoin.
[Translation]
The Chairman: Senator Beaudoin, unless I am mistaken, I do believe that you have some amendments.
Senator Beaudoin: I have two amendments.
The Chairman: You must present one amendment at a time.
Senator Beaudoin: I will begin with the first one.
The Chairman: Go ahead.
Senator Beaudoin: The first amendment deals with clause 12 on page 119.
The recruiting methods and personnel management practices of a growing number of government departments are not being monitored or reviewed in any way whatsoever.
This is a bit surprising in a law which deals with the public service. The purpose of the amendment is to broaden the surveillance function with respect to government departments that are not already being monitored.
The amendment would read as follows:
That Bill C-25 be amended in clause 12, on page 119, by replacing line 30 with the following:
``b.(1) notwithstanding any other Act, to conduct audits and to report on the staffing program and the general staffing practices of organizations or Crown corporations named in Schedule 1.1, II, III, IV or V to the Financial Administration Act that are not subject to this Act and for which the Commission does not have the exclusive authority to make appointments, either on its own initiative or upon request by a committee of the Senate, of the House of Commons or of both Houses of Parliaments; ''
The English text reflects the French text in every aspect. That is my draft amendment.
The Chairman: Honourable senators, are there any comments?
[English]
Senator Day: I do not have a lot to say on this one. I understand that this proposal has been picked up from some suggestion by the Public Service Commission, which suggested that amendment might be in order. I am not sure just where it came from. I do not recall a minister discussing it at length. However, it seems to me that such an expanded function would require some considerable thought and attention and I am not prepared to accept the amendment as proposed at this stage.
The Chairman: Thank you.
Senator Kinsella: Chair, honourable senators, this was a proposal made by the Social Science Employees Association when they appeared before us. Their brief pertained to finding people who have abilities and knowledge that meet basic measures of competency.
Although you convinced me, Senator Beaudoin, I will bet you $100 that you have not convinced friends opposite.
[Translation]
The Chairman: Does anyone else wish to intervene?
[English]
Are you ready for the question?
[Translation]
Senator Beaudoin moves that Bill C-25 be amended in clause 12, on page 119, by replacing line 30 with the following:
``b.1) notwithstanding any other act, to conduct audits and to report on the staffing program and the general staffing practices of organizations or Crown corporations named in [...]
[English]
Shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment will please raise their right hands.
All those opposed to the amendment will please raise their right hands.
Mr. Onu: Three in favour, seven against.
The Chairman: I declare the amendment lost.
[Translation]
Senator Beaudoin, do you have another amendment?
Senator Beaudoin: The second amendment pertains to the merit principle. I am somewhat scandalized to see that the merit principle has not been given a fundamental and strong role in this bill. In my opinion, nothing is more important than merit. For all intents and purposes, this bill is sounding the death knell for merit-based staffing, whereby the most highly qualified candidate is chosen for the position.
I am of the firm belief that we do not give enough weight to this fundamental principle in a public service law. The purpose of the amendment is to reestablish relative merit as part of the basic selection process. This amendment would include, in the new bill's regulations, the currently accepted exceptions.
If there is one aspect of public service legislation that is fundamental, it is the whole issue of merit. I have only been attending the debates recently, but I have had enough time to realize that the issue of merit has not been given the attention it deserves. I believe that this amendment can be justified very easily.
[English]
I move:
That Bill C-25 be amended in clause 12, on page 126, by replacing lines 8 to 12 with the following:
30(1) Appointment by the Commission to or from within the public service shall be free from political influence and shall be made on the basis of merit by competition or by such other process of personnel selection designed to establish the relative merit of candidates as the Commission considers is in the best interests of the public service.
(1.1) Despite subsection(1), an appointment may be made on the basis of individual merit in the circumstances prescribed by the regulations of the Commission.
(2) an appointment is made on the basis of individual merit.
The Chairman: Thank you, senator.
[Translation]
Senator Gauthier: I would like to ask Senator Beaudoin a question. How is your amendment different from what is contained in the act at the moment?
In the past, there was no definition of the merit principle. Today we have a chapter, or rather clause 30, which is made up of four parts. How is your definition different from the one we already have?
Senator Beaudoin: This would give additional strength to the merit principle. It has always been my understanding that the choice of candidates in the public service is to be based on merit. The bill before us may define the principle better than the existing act does, but it still does not give priority to the merit principle.
This is not the case in several parts of the bill. The principle is not taken into account. That is no basis for legislation of this type. The issue of merit can be disregarded.
I confess that I find this surprising. I am jurist and if there is one thing that must be respected in matters of justice, it is the merit principle. Positions must go to the best candidates. That is the basis of a Public Service Commission. It is the basis of the public service.
The idea is to strengthen the merit principle and to extend it in Bill C-25. In this regard, I think this amendment is absolutely in keeping with the purpose of an act on employment in the public service. Is there anything more important than the merit principle? That is the purpose of the amendment.
Senator Gauthier: Earlier, you said that it should be included in the regulations. There will be regulations under Bill C-25. Is that what you are suggesting?
Senator Beaudoin: For years now, we have been passing laws that are general in nature and then we do many things through the regulations. I have always thought that the regulatory authority was debatable, because legislation should be done properly. Our laws should anticipate certain eventualities and establish guidelines.
I believe in a regulatory authority. It is very well developed nowadays. However, it is strange that sometimes there are few or no regulations, or there are poor regulations. The regulatory authority is fundamental, and it is no accident that we have a senate committee on regulations in the Senate.
Regulations must comply with the act. The act must be so well drafted that regulations can be introduced to follow up on the intention set out in the legislation. I think we should do the same thing for the merit principle. If this is a complicated matter, then so be it. That is the way legislation is done these days. I am not opposed to regulations, provided they are properly drafted and are in keeping with the principles set out in the legislation.
Senator Day: Clause 30(1) states that appointments by the commission to or from within the public service shall be made on the basis of merit. That is clear. Appointments shall be based on merit.
I fail to see what this amendment adds to Bill C-25 or how it is helpful. Why should we change the bill if we are going to say the same thing?
Senator Beaudoin: We are not saying the same thing. We are saying that merit must not be the only consideration. The process must be free from political influence. There is a very famous case on this that you know as well as I.
It is not enough for justice to be done. It must be clearly apparent that justice has been done. That is the Sussex case of 1924, which I quote every year to all students. The idea is that appointments to or from within the public service must be free from political influence, made on the basis of merit and by competition. I remember Senator Bolduc's speech, in which he said that we did not talk about competitions enough. We do not focus on merit enough. The amendment adds something. At least, that is its objective.
Nothing is perfect in this world, but I do think this is an improvement on the wording in the bill.
Senator Day: I think it is almost the same. I note that subclause 2 states that appointments are made on the basis of merit, and so on.
Senator Beaudoin: My amendment adds that appointments should be by competition or by another process of personnel selection.
Senator Day: The reference to ``such other process'' means that this applies not only to competitions, but to other processes as well.
Senator Beaudoin: Precisely. I prefer competitions to other processes.
Senator Day: In your amendment you used the words ``such other process.'' Is that correct?
Senator Beaudoin: Yes, there may be some exceptions, but the merit principle and competitions are fundamental. I am convinced that we should do this, and I think the amendment does change something in the bill. That is my opinion.
The Chairman: Senator Day, you should have heard the debate between Senator Bolduc and some of our other witnesses to properly appreciate the arguments put forward by Senator Beaudoin and the proposed amendment.
[English]
Senator Bolduc's concern here is the following, as I understand it. Explicit in the bill is the authorization to appoint, on the basis of unstated other qualifications, from a field of one. That can be done now, as you have pointed out. However, the way the bill is worded, with respect to merit, Senator Bolduc's concern is that relative merit will no longer be the rule but the exception, and that competition will no longer be the rule but the exception.
There was quite a debate on it in the committee. I will not comment further from the chair on it except to state for the record what I think the concerns of Senator Bolduc are, if I can summarize them rather roughly.
[Translation]
Senator Gauthier: The French version of your two proposed amendments uses a word with which I am not familiar, ``malgré.'' The English reads ``notwithstanding any other Act'' and ``despite subsection (1). Formerly, the word used in the French version was ``nonobstant,'' notwithstanding. Now, you are using the word ``malgré,'' despite. Is there a difference between the two?
Senator Beaudoin: This is an override or derogation clause. I always refer to section 28 of the Charter. It states that notwithstanding anything in this Charter, the rights and freedoms are guaranteed equally to men and women. This is a special clause that provides for a power. The same is true here.
We want the fundamental emphasis to be on merit and competitions, not the opinion or latitude of a deputy minister. I was a public servant a few years ago, and I have always thought that the merit principle and competitions were fundamental to public service appointments. I can understand that in some cases an individual may be selected without competition. That could happen, but it should not be a widespread practice.
My fundamental principle has always been that the best candidate should be appointed to the position.
That is the best test. Competitions for positions should be advertised so that people can apply for the position. If that is not done, we may be giving some very broad powers to individuals who may appoint someone who is not necessarily the best person. In such cases, positions will be staffed without competition. I think there are very good arguments in favour of my proposed amendment.
There is no doubt that Senator Bolduc convinced me of this. I regret that he is not here today. He was right. I think an amendment is warranted.
[English]
The Chairman: Are you ready for the question?
Senator Beaudoin moves that Bill C-25 be amended in clause 12, on page 126, by replacing lines 8 to 12 with the following —
Hon. Senators: Dispense.
The Chairman: All those in favour of the amendment will please raise your right hands?
All those opposed to the amendment will please raise your right hands?
The Clerk: In favour, two; against, seven.
The Chairman: I declare the motion in amendment lost.
Senator Oliver, unless I am badly informed, you have several amendments relating to partisanship.
Senator Oliver: Yes, I do, Mr. Chairman. However, in view of what I perceive as an unwillingness to accept even good and noble amendments, I can see no point whatsoever in my proceeding with these amendments. They are drafted; they are ready. We have very strong arguments to make in favour of them. I think it would be wasting honourable senators' time for me to proceed at this time. I will not proceed on that basis because I sense no willingness to be heard.
The Chairman: Very well, senator.
Honourable senators, are there other members of the committee who may have amendments to propose?
If not, in accordance with the agreement we reached earlier, I will proceed to clause-by-clause study of Bill C-25.
Is it agreed to stand the title and clause 1?
Some Hon. Senators: Agreed.
The Chairman: Shall Part 1 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 2 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 3 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 4 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 5 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 6 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 7 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 8 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Part 9 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Schedule 1 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall Schedule 2 carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 1 carry?
Some Hon. Senators: Yes.
The Chairman: Carried. Shall the title carry?
Some Hon. Senators: Yes.
The Chairman: Carried. Shall the bill carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall I report the bill to the Senate?
Some Hon. Senators: Agreed.
The Chairman: Carried. Thank you, honourable senators. I shall report the bill to the Senate as early as tomorrow afternoon. The next meeting of this committee that we have scheduled is for September 30 at 9:30 a.m. We will have officials of the Treasury Board here to discuss Supplementary Estimates, which will have been tabled on September 23. Thank you all for your patient and forbearance. Until September 30, the committee stands adjourned.
The committee adjourned.