44th Parl. 1st Sess.
November 2, 2022 02:00PM
moved that Bill C‑290, An Act to amend the Public Servants Disclosure Protection Act, be read the second time and referred to a committee.
He said: Mr. Speaker, I thank my colleagues for being here today.
There is nothing more important for a government than an ethical, competent and responsible public service, and we must value the work of our public servants. Public servants are in the best position to note irregularities in government, in its management of public monies and use of Crown assets, as people here like to call them. Sometimes, out of a sense of responsibility, these officials become whistle-blowers by disclosing wrongdoing. It is an extremely important role. For that reason, we must protect them. We also need to create and enhance mechanisms that these officials can use to disclose wrongdoing.
Currently we have the Public Servants Disclosure Protection Act. This legislation came about as a result of the sponsorship scandal. We all know that the federal sponsorship program was highly problematic from 1997 to 2001 and caused a major scandal. It was created in the aftermath of the 1995 referendum, when the federal government wanted to have more visibility in Quebec and decided to hang Canadian flags in just about every cultural and social space in Quebec.
Unfortunately, in addition to being fundamentally bad, this program ended up being used as a quid pro quo mechanism. Communications firms with close ties to the Liberal Party would receive huge contracts, and the money would directly or indirectly wind up back in the Liberal Party of Canada's coffers. This undermined taxpayers' confidence in the government and public confidence in government operations.
The whole thing got out of control and naturally undermined the very democratic process that ensures that we are elected to the House and that people trust the process. We are not talking about a scandal involving small sums of money; we are talking about the proven waste of a quarter of a billion dollars of public funds, which led to the Gomery commission.
As members will recall, this resulted in Paul Martin's government being severely punished. It was re-elected with a minority government in 2004. Ultimately, Canadians and Quebeckers decided to toss out the Liberals when they voted in many Bloc Québécois members and gave the Harper government a minority mandate. That government took swift action to protect whistle-blowers in the public service.
Members will recall that one of the reasons the public learned as much as it did about the extent of the sponsorship scandal was because of a whistle-blower nicknamed “MaChouette”. She spoke regularly with journalist Daniel Leblanc, who had to battle in court to protect her identity.
One of the Harper government's first pieces of legislation was the Federal Accountability Act, followed by the Public Servants Disclosure Protection Act, which came into force on April 15, 2007.
Obviously, the world has changed a lot since then, but this law has not changed and has not been improved, amended or corrected in 15 years. Now the time has come to do the right thing for our competent public servants and protect whistle-blowers.
The objective of Bill C‑290 is to protect public servants who disclose wrongdoing in the public service, and also to establish a process to investigate the wrongdoing. That is very important because we want wrongdoings to be disclosed and we want to put an end to them. We want to have processes to help us do that. The ultimate goal is better management of government resources.
The current act covers many things. It was an ambitious law at the time, and it had good intentions. It described wrongdoing as a contravention of any act of Parliament or of the legislature of a province, or of any regulations, by persons in authority; a misuse of public funds or a public asset; mismanagement in the public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the regular duties of a public servant, of course, because we want them to be able to do their job.
The act covers serious breaches of a code of conduct stemming from the events I just mentioned and, of course, wilfully and knowingly directing or counselling a person to commit any of the wrongdoings I just listed.
It is still a fairly ambitious law with built-in mechanisms. The act created a mechanism for the disclosure process. We want there to be a mechanism. We do not necessarily want whistle-blowers calling journalists in secret and passing confidential documents to them. We want there to be a process, a process that is supposed to protect anonymity and, more importantly, protect public servants from reprisals. The act created an independent institution, the Office of the Public Sector Integrity Commissioner of Canada, which can receive disclosures and investigate allegations and possible reprisals. Lastly, the Public Servants Disclosure Protection Tribunal was created.
If the act is so great, why did we introduce Bill C‑290?
Again, the principles of the act that has been in effect since 2007 are excellent, but the act has many flaws. They are small flaws, but when you add them all up, they make this legislation ineffective. We have seen it. Since this legislation was implemented, we can count the number of cases where disclosures have gone through the correct process. We can basically count them on two hands.
That is consistent with the findings of the International Bar Association, which ranks Canada at the bottom of the list when it comes to laws that protect public servants who disclose wrongdoing. Canada has one of the worst records in the world in this regard. I will spare my colleagues from having to listen to a list of the countries that rank above us because it is both embarrassing and shameful. When the International Bar Association assessed the Canadian legislation, Canada got a zero on 19 of the 20 assessment criteria. Do members know what criterion Canada did not get a zero on? Just having an act. That is the only criterion on which we did not get a zero. We are not starting from scratch, but we have a long way to go.
Other jurisdictions have led the way on this. The European Union, Australia and the United States have good systems, and we can follow in their footsteps. The point is, things have to change for the better. Taxpayers deserve better.
We do not have to start from scratch either. There was a committee study in 2017. I acknowledge my parliamentary colleagues who worked very hard on that report. They met 12 times, heard from 52 witnesses, received 12 briefs from experts, whistle-blowers and unions, people who know about this stuff, people on the ground. Challenges and shortcomings were identified, and 15 recommendations were issued.
I know that one of the people who made a significant contribution to drafting the recommendations passed away recently. That person was Michael Dagg, and I, along with a number of my colleagues, want to pay tribute to him.
What did we learn from the committee? The committee showed us that there is not enough protection for whistle-blowers in the public service and that public servants lack confidence in the process because of the way it works. They know that mechanisms exist, but since they do not have confidence in where the process will lead and they are afraid that it will end up being very harmful to them, what we end up with is an act that is not used and public servants who do not disclose wrongdoing.
Bill C‑290 addresses these shortcomings and, as I said, essentially seeks to correct the problems with the Public Servants Disclosure Protection Act.
What does this bill do? First, it broadens the definition of wrongdoing. The act covers serious cases of wrongdoing and illegal acts, but it does not cover cases of political interference in administrative decisions, even though it should. If a public servant discloses an incident of political interference, their complaint will simply be rejected. It cannot be processed or even considered by the public servants in the department who deal with complaints or by the commissioner.
However, we need to be able to get to the bottom of things. Under the current legislation, it is impossible to do that when wrongdoing is disclosed. This bill will help to remedy that.
In the current situation, turning to the people in charge of receiving complaints can be extremely formal, difficult and intimidating for a public servant. What is more, the commissioner who deals with these matters has a limited budget. He barely has the necessary resources, expertise, or knowledge of the departments. As a result, often the investigations go nowhere. It is possible to refer the case to the police, but, again, there needs to be an investigation first and that generally does not happen.
Bill C‑290 proposes to allow the auditor general to investigate such cases. Remember that at the time of the sponsorship scandal, it was the auditor general, Sheila Fraser, who helped expose the wrongdoing.
In addition, we want to protect more people. The act currently protects public servants, but it does not protect former public servants who may have witnessed wrongdoing over the years but did not decide to disclose it until later. Furthermore, the act does not protect contract or temporary employees, such as someone who works at CRA for a few months during tax season. These are the people who are most vulnerable in these circumstances, because their employment status is precarious. They can easily become victims of intimidation or reprisals.
At the same time, we need to rebuild trust with the public service. Under the current act, a complaint can be dismissed, even if the wrongdoing is well established, because the commissioner may find that the person reporting the wrongdoing had personal reasons for doing so.
We understand the seriousness of that. Often someone who denounces a wrongdoing did not witness it only once or twice. It was not a quick 15-minute incident on a Tuesday morning. It happens repeatedly for days, for years. It makes the workplace extremely challenging. It is normal for a whistle-blower to become bitter, frustrated and angry, and that can negatively impact the workplace. It is unfair that an assumption about the reasons for a public servant's deep emotions can result in the facts being set aside.
This bill will have a positive impact. As members know, I am a relatively new parliamentarian. I decided to introduce Bill C‑290 as my first private member's bill because I think it is important to introduce non-partisan legislation that is in the public interest. Every single person in this House, no matter their party, their ideology or which side of the constitutional divide they are on, wants public funds to be well managed. We all want Crown assets, federal government assets, to be used properly. We all want taxpayers who submit their income tax returns in April or May to have confidence in the machinery of government.
The main reason I introduced this bill is out of respect for the thousands of professionals who dedicate their lives and their careers to public service, people who devote their time and energy to public service, who truly care about the work they do. If we do not update the Public Servants Disclosure Protection Act, we are essentially preventing those people from doing their jobs to the best of their ability in extremely important situations. I think our public servants deserve Bill C‑290.
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Madam Speaker, I am very pleased to have the opportunity to rise to speak to Bill C‑290, an act to amend the Public Servants Disclosure Protection Act.
First, I would like to thank my colleague from Mirabel for introducing Bill C‑290, which is very well written. This is very useful and important work. I think everyone will agree that public servants who disclose serious wrongdoing must be protected.
The question is not if we can strengthen those provisions, but how. Bill C-290 offers some potential steps forward, but it also poses some important legal and operational challenges.
Today I am going to speak about what has been done to better protect whistle-blowers, the upcoming comprehensive review of the act and what needs to be fixed in Bill C-290 to help it create the positive change I know my hon. colleague certainly intends.
The Public Servants Disclosure Protection Act promotes a work culture based on ethics and the integrity of the federal public service. Canada's whistle-blowing legislation is one of the various recourse mechanisms available to public servants when it comes to harassment, discrimination, labour grievances and privacy complaints.
The government has made meaningful improvements to the system. We have implemented greater guidance for the internal disclosure process.
We have increased the number of awareness activities and training sessions for public servants, supervisors and managers. We have also improved reporting on the internal disclosure process and founded wrongdoing.
The government has also established a central website as part of the government portal. It will allow Canadians to access information about founded wrongdoing within federal institutions. In his mandate letter to the President of the Treasury Board, the Prime Minister directed her to build on the progress that has been made and to “continue to take action to improve government whistleblower protections and supports”. In keeping with this mandate, we will soon be conducting a comprehensive review of the act, which will include recommendations for possible amendments.
The review will be conducted by a working group of academics, experts and union officials. Their work will take into account international research and the Canadian experience, the report from the Standing Committee on Government Operations and Estimates on the Public Servants Disclosure Protection Act, as well as the debate and testimony on Bill C‑290.
Our intent is to ensure that the law effectively protects and empowers public servants to shine a light on wrongdoing and to help strengthen Canadians' confidence in the integrity of our public institutions. This is what makes the bill before us so important.
As it currently stands, Bill C‑290 contains some positive measures. It would extend protection to cover more public servants involved in reporting wrongdoing. It would extend the period during which a reprisal complaint may be filed from 60 days to one year. It would increase the applications respecting offences under various sections of the act. It would enable the Public Sector Integrity Commissioner to disclose additional information in specific circumstances. It would also require a review of the act every five years. These are valuable and important proposals.
The hon. member who introduced this bill is to be commended for the work he did in preparing this bill.
That said, Bill C‑290 also raises issues that have to be looked at in committee to make sure there will not be negative legal and operational repercussions. It is important to note that the purpose of the Public Servants Disclosure Protection Act is to address serious ethical breaches that cannot be dealt with using ordinary recourse mechanisms. It is not designed to deal with all ethical breaches or to replace existing recourse mechanisms meant for issues such as harassment, discrimination, workplace grievances and privacy complaints.
These other recourse mechanisms include those set out in the Federal Public Sector Labour Relations Act, the Canada Labour Code, the Canada Occupational Health and Safety Regulations, the Work Place Harassment and Violence Prevention Regulations, the Canadian Human Rights Act, the Privacy Act and the code of conduct for procurement.
I would also like to point out that the provisions of Bill C‑290 will result in a significant amount of overlap and duplication when it comes to these processes. Consider, for example, the bill's proposal to remove the Public Sector Integrity Commissioner's power to refuse to deal with a complaint regarding reprisals that may be or have been dealt with under another act of Parliament. This change could lead to the use of multiple processes for the same issues by various administrative bodies with different mandates and objectives.
Such overlap and duplication could result in wasted resources. It could lead to inconsistent determinations, differing remedies and duplicating settlements. I doubt that the hon. member had these consequences in mind.
Another example is the proposal in Bill C-290 to include abuse of authority in the definition of wrongdoing. This could lead to overlap with staffing complaints on the same allegations under the Public Service Employment Act. Once again, this could result in the potential for parallel proceedings and multiple decisions on the same matters that could contradict each other.
We need to avoid introducing unnecessary duplication and confusion into the current system. We must be careful not to undermine the value of grievances, which are an important tool for unions in the public sector.
Other provisions will change the degree of severity of wrongdoing covered under the act, opening up the process to the most trivial of misdemeanours, which will clog the system and reduce its effectiveness. Bill C-290 also requires executives to provide support to a public servant involved in a disclosure, which conflicts with the principle of confidentiality.
By including contractors in the provisions, Bill C‑290 could not only result in problematic employment relationships, but it could also encroach on provincial jurisdiction. I have no doubt that that was in no way the Bloc Québécois member's intention.
This bill also removes the discretion of the Public Servants Disclosure Protection Tribunal to decide whether to add the person alleged to have taken a reprisal as a party. This could in fact expose whistle-blowers in cases where the person alleged to have taken a reprisal does not know who the complainant is.
My colleague has introduced a very important bill. Parliament needs to consider whether the operational concerns I have outlined today can be addressed in committee or whether it would be better to wait until the review leads to more complex reforms.
In closing, I would like to thank my hon. colleague from Mirabel for his work on Bill C‑290, and I look forward to the next steps in the legislative process.
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