OGGO Committee Meeting
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Standing Committee on Government Operations and Estimates
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EVIDENCE
Monday, May 15, 2023
[Recorded by Electronic Apparatus]
[English]
I will call this meeting to order while everyone is paying rapt attention.
Welcome to meeting number 66 of the House of Commons Standing Committee on Government Operations and Estimates. Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, and the motion adopted by the committee on Monday, May 1, 2023, the committee is meeting for clause-by-clause consideration of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.
We have a couple of irregular witnesses today: Ms. Laroche and Ms. Stevens. They're here to answer questions. They won't be making any opening statements for us today. In place of our analysts, we have legislative experts on whom we will be relying quite heavily today, I suspect. They're Ms. Sauvé closest to me and Ms. Boyi furthest from me.
Colleagues, in my almost eight years, this will be only the second time we've actually done a clause-by-clause at OGGO, so I hope you will all bear with me and each other on this as we go through it.
I have a small opening statement prepared by our legislative assistants, which I will read. It's just general information on the clause-by-clause today. I'd like to provide members of the committee with some instructions and a few comments on how the committee will proceed with the clause-by-clause of Bill C-290.
Today's examination, as we know, is an examination of all the clauses in the order in which they appear in the bill, except for the short title, which will be considered at the end. I will call each clause successively, and each clause is subject to debate and a vote. If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. If we're all in general agreement, we will do it on division if that is fine with everyone.
Amendments will be considered in the order in which they appear in the bill and the package each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee.
In addition to having been properly drafted in the legal sense, amendments must also be procedurally admissible. I may be called upon to rule amendments inadmissible if they go against a principle of the bill or beyond the scope of the bill—both of which were adopted by the House when it agreed to the bill at second reading—or if they offend the financial prerogative of the Crown. We must not offend the Crown. If members wish to eliminate a clause of the bill altogether, the proper course of action is to vote against the clause when the time comes, not propose an amendment to delete it.
I'm going to go very slowly so all members can follow the proceedings properly. I will mostly be going slowly for my own benefit.
In the package that was distributed by the clerk of the committee, amendments have been given an alphanumeric number in the top right corner to indicate which party submitted them. There's no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.
During debate on the amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and the subamendment cannot be amended. When a subamendment is moved for an amendment, it is voted on first. Then another subamendment may be moved or the committee may consider the main amendment and vote on it, just to keep things interesting.
Once every clause has been voted on, the committee will vote on the short title and the title of the bill itself. An order to reprint the bill may be required, if amendments are adopted, so that the House has a proper copy for use at report stage. Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments, as well as an indication of any deleted clauses.
Before we start, I'm going to turn things over to Ms. Sauvé for a couple of quick comments about some changes.
Go ahead, Ms. Sauvé.
Thank you, Mr. Chair.
As members will have noticed, a number of new amendments—12—were distributed shortly before the meeting started. We unfortunately did not have time to include them in the package in the proper order. I have advised the chair on when these amendments will be coming up in the course of the clause-by-clause consideration and in which order they should be considered. There may be some short delays as we wrap our heads around the new order of things.
Thank you.
Again, I ask for everyone's patience. I'm sure there's going to be a lot of back-and-forth, and it's rather irregular for our committee business.
Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed. I will call clause 2.
(On clause 2)
The Chair: Shall clause 2 carry?
I see Mr. Fergus. Is this on clause 2 or on the title? Please tell me it's clause 2.
Mr. Chair, I just wanted to thank you and thank all members for their patience.
[Translation]
I'd like to thank Mr. Garon for the work we've done and for his co‑operation.
This private member's bill is very important, and I hope the committee will be able to adopt it today, to the satisfaction of all the committee members.
I want to thank everyone who provided amendments. I'll have a lot to say when we get into the debate.
First, though, I want to assure my fellow members of the government's good faith when it comes to protecting whistle-blowers in the federal public service who disclose wrongdoing.
[English]
Thank you, Mr. Fergus.
Shall clause 2 carry?
(Clause 2 agreed to on division)
(On clause 3)
The Chair: On clause 3, we have a Bloc amendment.
Do you wish to speak to it, Ms. Vignola?
[Translation]
Yes. We are proposing an amendment to clause 3. You received it last week. The purpose of the amendment is to define political interference as interference in the public sector that causes any political or personal interest to prevail over the public interest. Paragraphs (a) and (b) seek to ensure that the public interest prevails over any other interest, whether personal or political.
I'm going to give the floor to Mr. Garon, the sponsor of the bill.
I wasn't expecting my fellow member to be this generous.
Bloc Québécois amendment 1 goes to the heart of the bill and basically proposes to define what political interference means. The idea is to ensure that the act includes a clear definition of political interference, one that is consistent with those used by other countries, the U.S. in particular.
A couple of options are on the table. The first is the one advocated by all the witnesses who appeared before the committee, including experts and lawyers from the Government Accountability Project. In other words, their recommendation was to include a definition in the act.
The second, which is captured in the Conservatives' amendments, is to let the government define political interference later on, through regulation. Both we and the experts feel this approach would weaken the bill.
I'm being told that one of the Liberals' amendments seeks to remove the definition—but I would have to check. Our position is that the act should set out a definition, one that is clear and in line with the standard in other countries. Basically, that's the purpose of the amendment.
[English]
First of all, I'd like to thank Mr. Garon again for putting forward this amendment, BQ-1. With this amendment, it's very important that we understand that the best way, we feel, to define “political interference” is in the Conflict of Interest Act, because there are provisions in there.
Although I would recommend that we don't vote for BQ-1, we support what will be coming up afterwards, which gives us the political definition we have in what would be—I think you've received it—the clause in the table-dropped version on page 2.
[Translation]
Would it be possible to provide committee members with a paper copy of all the amendments received thus far, with the page numbers? That would make our job easier and ultimately save time.
[English]
Paper versions are on the way, but I do not have them right now, so there's just what was emailed out at 2:53 p.m.
Go ahead, Ms. Kusie.
Is the government proposing another definition of “political interference”, or standing in opposition out of concern for this?
The definition we'd like to use is the one that's in the Conflict of Interest Act, which already exists. It's well referred to, and it's one that stands the test of time.
That's not located within the new amendments that just arrived from you, I believe, because they start in clause 4.
Colleagues, are we ready to vote, or do you wish to wait a few minutes to read?
Go ahead, Ms. Kusie.
[Translation]
I'd like to know why the Bloc Québécois decided to put forward amendments when the sponsor of the bill is a Bloc Québécois member. Usually, the sponsor's version of the bill covers all the main elements. Why did the Bloc decide to put forward these amendments? Did it have to do with what the witnesses told the committee?
[English]
I'm sorry. Before you answer, colleagues, I'm going to interrupt.
I realize there's been a lot of paper dropped at the last second, unfortunately, and we're just getting it now, but to ensure smooth sailing, if there are no other speakers, I will call a vote.
Don't take it as me pushing you, but so that we have clarity, I will do that. If you wish to speak to that, please raise your hand.
Go ahead, Mr. Garon.
[Translation]
Thank you, Mr. Chair.
Throughout the process, we underscored the importance of hearing from witnesses. Most of the expertise in the area of whistle-blower protection was developed abroad, by legal experts and various groups, for the purpose of adopting a better whistle-blower protection regime. Given how behind Canada is when it comes to protecting whistle-blowers, we firmly believed it was important for the committee to meet with experts and hear their recommendations.
It was obvious to us that we should leverage that expertise, and it is possible to incorporate witness recommendations into a private member's bill. Bill C‑290 captures the main elements of a stronger regime, but if the committee were to adopt certain amendments, including those put forward by the Bloc, it would do two things. First, Canada would no longer be a laughingstock internationally when it comes to whistle-blower protection, and second, Canada's regime would satisfy seven or eight of the 20 criteria that characterize a strong whistle-blower protection regime.
When witnesses appear before the committee, we need to listen to what they have to say, examine their recommendations, incorporate them into the bill, and of course, negotiate. I've had many a conversation with Mr. Fergus and others.
As for this specific amendment, it was important to us and to the witnesses to follow in the footsteps of other jurisdictions and establish a clear definition of political interference. It was also obvious that the definition should be included in the act. The problem is that the Conflict of Interest Act covers only public office holders. We wanted to underscore how important it was for the whistle-blower protection regime to have consistency in the act and definition, and to apply to the entire chain of command, top to bottom. That's why we are proposing this amendment.
[English]
[Translation]
Mr. Chair, I'd like to reassure the honourable member that the idea is not to limit the application of the Public Servants Disclosure Protection Act. However, we have to base the definition on one that exists in Canadian legislation. We would rather use a well-established definition than introduce a second one.
I appreciate the constructive conversations I've had with the member, but keep in mind that, when a definition is being established, it needs to apply to specific individuals or office-holders, in a specific context. That is why we consulted the experts.
I'm not saying that I'm opposed to the definition in the Conflict of Interest Act, but it was drafted to apply specifically to public office holders. That's why we came up with another definition, one that is appropriate, strict, consistent and comprehensive, without being overly broad.
Personally, I have trouble with the argument that there can't be two definitions in the thousands and thousands of pages worth of legislation, two definitions that would address two different situations and two completely different types of positions.
I still haven't read the definition we are proposing in the amendment. Political interference would mean interference in the public sector, specifically as follows:
(a) in a way that causes any political or personal interest to prevail over the public interest, including by influencing or directing a public servant
(i) to apply a law not according to the intention of Parliament but according to some other interpretation preferred by the person so influencing or directing, or
(ii) to exercise a discretion or a power or to refuse or fail to do so, or to take any other measure; or
(b) in any other way that does not observe the distinction between political and personal interests and the public interest or the priority in the public sector of the public interest.
I'd like to hear what the member doesn't like about the definition we are proposing, without rehashing the fact that there would be two definitions for two specific situations—an argument I find hard to swallow.
[English]
Several parts of his definition he has invented for this purpose as opposed to relying upon already well-travelled, understood principles in the existing legislation. There are three or four times.... What is “public interest”, then, in that definition?
This is why, when we start getting into the weeds, it's much better, if we can, to stick to existing legislation, where we know what the definitions are, as opposed to inventing something new. I think that will lead us down the garden path, in a sense.
[Translation]
Besides the fact that I think we're ready to vote on the amendment, the current definition of wrongdoing in the act includes the contravention of an existing act, including the Conflict of Interest Act.
The Liberal Party is proposing two amendments. The first would remove the reference to political interference from the bill, and that would weaken the bill, no matter what members say. The second would include the Conflict of Interest Act. All BQ‑1 does is enhance the bill, since the existing definition in the act includes the contravention of any existing act, including the Conflict of Interest Act.
I'm not sure whether the committee will be able to settle the matter through debate, Mr. Chair, but on our side, we are ready to vote.
[English]
I hate to do this, because I want this to be done in a collaborative spirit, but I really do think we'll be creating a difficulty here, Mr. Chair, in terms of the definition, by adding a new legal definition. I'm not certain we will get to the point that Mr. Garon truly wants to get to.
I don't know if there is an opportunity to ask a question of our officials from TBS, or ask our officials—
At this point, they are not offering anything, but perhaps our witnesses could weigh in.
This is specifically about having this motion pass with one definition, with an amendment to be discussed later...but not necessarily a changed one from the Liberal amendment.
You can go ahead, Mr. Fergus, but I believe the question is this. If we have one definition here under BQ-1, does it conflict with another definition in another amendment that hasn't passed yet later in the bill?
Mr. Fergus, do you wish to clarify?
Sure.
The question I would ask is this. Is it better to use an accepted definition for the purposes of coming to an understanding of what political interference is as opposed to inventing a new definition?
[Translation]
I'll leave it up to the committee to choose the definition, but there are a number of definitions. As mentioned, the Conflict of Interest Act has a definition, but so does the Public Service Employment Act.
Therefore, depending on how the various acts are used, the definition is usually understood as having a particular scope. Having definitions is very important in order to make sure that the commissioner, chief executive or the person responsible in the department can apply the definition in a practical way that achieves the intended purpose.
[English]
Thank you.
I want to understand from the witnesses... My understanding is that political interference should probably be left defined by regulation, because we have to make sure it's both consistent and objective. There's one part of this definition that I find quite troubling.
For example, look at (i):
(i) to apply a law not according to the intention of Parliament but according to some other interpretation preferred by the person so influencing or directing,
I would think that is incredibly subjective. There are probably 10 people who would offer 10 different interpretations of what Parliament intended laws to mean sometimes, and that becomes the subject of all kinds of litigation.
Do you believe this is an objective component of a definition if you look at (i)? Would we be best advised to do what I think a further Conservative amendment does, which is define this by regulation, think it through and have an objective definition consistent with other laws?
Building upon the previous response I gave, in order to have a practical or functional definition, we need precision in what it means.
I will agree that with some definitions, and even interpretations at times of different laws and practices, we look at what the intent is behind certain policies and programs. The advantage of having a regulation is twofold. It allows further elaboration, and it also allows for consultation, so people can actually comment on it to make sure it meets the intended outcome that Parliament would be seeking.
[Translation]
I have a question for the experts we have with us.
Are there references to the intention of Parliament in other laws or legal regimes that have resulted in the courts or administrative tribunals having to rule on that intention, to ensure that the law stands up well and keeps pace with the times?
My understanding is that the courts, administrative tribunals and other decision-making bodies have had to rule on Parliament's original intent as referenced in laws or regulations. Can you tell me whether that is indeed true?
The Public Service Employment Act includes a number of definitions, and in some cases, they aren't very clear. With all due respect to Mr. Housefather, whom I hold in high regard, I would remind my fellow members that a regulatory definition doesn't necessarily ensure any more clarity. In many cases, the courts have had to clarify, in a number of ways, definitions as they apply in practice, including in connection with the Public Service Employment Act and federal labour law. Is that an accurate statement?
Thank you for your question. I'm actually not a lawyer, so I wouldn't want to venture an answer. I will say, though, that the courts do have to interpret legislation in applying the law and obeying the spirit of the law as intended by parliamentarians.
[English]
Is there a compromise solution here? I'd be interested in hearing from my colleagues across the table. Looking at CPC-1, it would amend clause 3 but would allow for regulations to be prescribed to ensure we can get that going.
Might that be a solution there?
If I can interject, CPC-1 will not move forward if NDP-3 or NDP-4 go forward. Those two have to be voted on first before we can get to CPC-1 and G-3.
[Translation]
I have a message for my Conservative colleagues, if I may, Mr. Chair. It's clear from their amendment that they feel it's important to include a definition of political interference. The idea behind our amendments is the same. We are just going about it in different ways. They are proposing prescribing the definition in the regulations, whereas our amendment is more in line with what the witnesses recommended.
I'm trying to wrap my head around this. The Liberals argued that including a proper definition of political interference in the act was a problem because it would create discrepancies with all kinds of acts. The next time around, they said that it was possible to have two different definitions, that it was fine as long as the government came up with the definition. I'm not attacking anyone; I'm just being logical.
That's not quite what I'm proposing.
I think the definition being proposed is problematic, but we do recognize the importance of defining political interference. I think the best way to proceed is to not adopt BQ‑1. We really want to look at everything carefully and make sure that the regulations are consistent. The benefit of CPC‑3 is that it gives us the ability to make sure that the definition we go with is flexible and doesn't needlessly create any contradictions in the bill.
[English]
[Translation]
If I understand Mr. Fergus's rationale, he's saying that, in order to save time, he would be willing to immediately withdraw the two new Liberal amendments that were put forward. I will read them, but they aren't numbered.
The first one seeks to amend Bill C‑290, in clause 4, by deleting line 36 on page 2.
The second one seeks to amend Bill C‑290, in clause 3, by adding after line 2 on page 2 the following:
(2.1) Paragraph (c) of the definition protected disclosure in subsection 2(1) of the Act is replaced by the following:
(c) in the course of a procedure established under any other Act of Parliament, including the Conflict of Interest Act; or
Would he be amenable to withdrawing those amendments, if the committee defeated BQ‑1 and adopted CPC‑3?
[English]
[Translation]
Mr. Garon, we can probably withdraw the second amendment you read, but not the first—the one with reference number 12418922 at the top left-hand corner. If CPC‑3 is adopted along with that amendment, I think it would work.
[English]
[Translation]
I think what our amendment seeks to do is provide as much flexibility as possible, while abiding by the spirit of the bill.
[English]
[Translation]
It's no secret that I prefer BQ‑1, but I prefer consensus even more. I think the bill is important enough to arrive at a consensus. I say that, but I also truly believe it.
I don't think I have the same reference numbers as my fellow members, but when I look at the proposed amendments, my understanding is that the Liberals are saying that CPC‑3 has to remain in addition to the first of the government's two amendments. That would mean adopting the Liberal amendment calling for Bill C‑290, in clause 4, to be amended by deleting line 36 on page 2, as well as CPC‑3, calling for the definition to be prescribed by regulation.
I'm no lawyer, but from what I understand, I think that the Liberals should withdraw the two amendments I read, and that the committee should defeat BQ‑1 and adopt CPC‑3. The government could then establish a definition by regulation, the same one used in the Conflict of Interest Act or not.
[English]
Colleagues, I realize we can be pretty casual in OGGO by going back and forth, especially during discussion times, but so we can stay on top of things, just put your hand up to be on the safe side.
Go ahead, Mr. Fergus.
I'd just like to make sure that I am not going to be inventing rules. Do the officials feel that if we were to withdraw BQ-1, we would require what is reference number 12418922?
Maybe I'll just wait a quick second here.
[Translation]
[English]
Mr. Fergus, just to be sure, you're not referring to any of the new amendments when you're discussing these with the officials. They would not have the new amendments.
I don't think they have a copy of the ones that were tabled just today. You're not referring to those, are you?
I apologize. Where did you get the copies from? If they haven't been moved, they shouldn't have copies of them yet.
If the one with reference number 12418922 were to be combined with the removal of BQ-1 and were to work out with the adoption of CPC-3, would that allow us to have the intentions known of what we want defined and allow the opportunity to make sure that is consistent with other notions of what interference is?
Ms. Laroche, could you speak a bit closer to your mike? We don't have the greatest sound today, apparently.
All right.
The amendment 12418922 aims to remove political interference as wrongdoing. The issue with leaving it there is that when somebody has a complaint, they can do it two ways. They can go to the PSIC or they can go internally to the senior official who's been delegated and to various people. Given that we're talking about political interference, this could put the head of a department in a conflict of interest, in that ministers as well as exempt staff could be investigated by departments in that regard, hence the rationale for taking it out.
In terms of the specific question mentioned by Mr. Fergus, it is a bit of an additional issue as opposed to making sure...from a definitional point of view. However, with the way it is inserted in the current bill, these are the consequences of leaving it in that particular section of the PMB.
Disclosures that are made within departments would require the senior officer to investigate, and I think to investigate a political interference blurs the line between the public service and the political level. I'm not sure we want to go down that road.
[Translation]
The Liberal amendment with the reference number 12418922 completely removes the reference to political interference from the bill. Everyone needs to fully understand that, including the Conservatives. If we adopt this amendment, it would blow apart CPC‑3, which proposes that the definition of political interference be prescribed by regulation. You can't define something that doesn't exist. Doing that would weaken the bill, because it would no longer have any definition of political interference and the government wouldn't be able to prescribe a definition by regulation.
That leaves us with a choice between amendment number 12418922 and CPC‑3. I propose that the Liberals withdraw amendment number 12418922. I would then withdraw BQ‑1, and we could adopt CPC‑3 to ensure that political interference is defined.
It's very clear: if the committee keeps amendment number 12418922, there is no more CPC‑3. That would cut out a whole part of the bill. That's a fact.
[English]
Just to clarify, CPC‑3 is not subject to any line issue. It's a stand-alone. If this goes away, CPC‑3 does not get deleted. It will be a separate one that will be debated and voted upon. If G‑3 goes, NDP‑3 or NDP-4...then it affects CPC‑1. However, for CPC‑3, there is no line conflict. It stands alone.
[Translation]
I may be missing something, here, but what you're saying would make sense had the Liberals not put forward their last-minute amendments. With amendment number 12418922—
[English]
Let me interrupt for a second. I apologize. I thought you said that if this motion changed, CPC-3 would be eliminated. I'm saying it will not, but I may have misinterpreted what you said originally.
[Translation]
I see, but if political interference is taken out of the bill, which is what amendment number 12418922 would do, what is the point of CPC‑3? After all, it's about defining that interference. While it may be possible to move CPC‑3, procedurally speaking, doing so creates a major inconsistency.
[English]
It doesn't kill amendment CPC-3. Indeed, it allows CPC-3 to establish what political interference is, and it replaces what was in the private member's bill. It will allow it to be done, and done in a way that makes it consistent.
I hope that's the correct understanding. I don't know if perhaps our legal folks can give us a sense of that, but I want to reassure Mr. Garon that it does not eviscerate CPC-3. It is actually giving definition to a new clause 4.
It's legislative, not legal. Technically, because CPC-3 hasn't been moved yet, it is also confidential. Therefore, we really can't be discussing it.
Forgive me, Mr. Chair, but you also mentioned that if one were adopted, it would have consequential—
I'm just talking about the numbers being adopted. I'm not talking substantively about any of the information included inside the amendments. All I've said are numbers. Anyone watching is not going to know what the number relates to, as opposed to the actual amendments.
Are we ready for the question?
[Translation]
[English]
We would require a UC motion to withdraw it.
Do we have that?
Some hon. members: Agreed.
(Amendment withdrawn)
The Chair: Another 25 hours and we'll be done clause 2.
Some hon. members: Oh, oh!
The Chair: Next up is G-1, an amendment by the government. I understand that Mr. Ferguson.... This is the second time I've called you Mr. Ferguson. Maybe if I went to you less I wouldn't mistake your name so often.
Mr. Fergus, go ahead, please.
It's no skin off my teeth, Mr. Chair.
I think we should support this amendment and this clause. I hope that I have the agreement of my colleagues, as I've had conversations with Mr. Garon and others.
The threshold in the current law is too high. To remove any threshold would be too much. I think this is a happy medium. It's not dependent upon any independent officers. It's dependent upon the person who's placing the complaint or whistle-blowing, if they are bringing it forward on the basis of a reasonable belief. I think that reflects what we heard in testimony as well.
Just quickly, colleagues, if G-1 passes, we get into a line conflict. If it is adopted, NDP-1 cannot be moved. There is a line conflict, as they both modify line 2 on page 2.
Go ahead, Mr. Johns.
Thank you.
The reasonable belief part was opposed by the experts we heard from. It's not present in any of the best practices in legislation that we looked at when we looked at whistle-blowing legislation.
This is where we're at: We don't believe it is necessary to move this. I don't believe the reasonable belief is there. We heard from experts that having this removed shows that it doesn't actually increase complaints. That's what we heard from the experts.
Thank you, Mr. Chair.
We heard from Tom Devine from the Government Accountability Project. In response to a question I asked him about whether or not the reasonable belief test is accepted, he answered that not only is it accepted; it's also a “universally accepted, legitimate merits test for whether a whistle-blowing disclosure deserves to be protected.” The best part of it, once again, is that it's not being determined by some higher-up. Reasonable belief is set by the person who is actually blowing the whistle.
Thank you, Mr. Chair.
I just wanted to remind my friend Mr. Johns that the reasonable belief test was actually recommended by the mighty OGGO in its 2017 report. In recommendation 1(E) on page 95, that was exactly what OGGO recommended.
[Translation]
We fully support the amendment, not only because it was something the amazing Standing Committee on Government Operations and Estimates called for, but also because it was something witnesses recommended. It reflects an internationally accepted standard. We have no problem with the amendment.
[English]
Perfect.
Shall amendment G-1 carry?
(Amendment agreed to on division [See Minutes of Proceedings])
The Chair: By the way, as I mentioned, that wipes out NDP-1.
We now go to Liberal amendment one from the new ones that were dropped today.
Mr. Jowhari, is that you?
They weren't necessarily distributed in order, colleagues. That's why I'm reading out the number to you.
It's number 12430471. That's the one from May 15 by Mr. Jowhari.
Thank you.
I move to amend Bill C-290 in clause 3 by adding after line 2 on page 2 the following:
(2.1) Paragraph (c) of the definition protected disclosure in subsection 2(1) of the Act is replaced by the following:
(c) in the course of a procedure established under any other Act of Parliament, including the Conflict of Interest Act; or
[Translation]
In the current act, paragraph (c) of the definition of “protected disclosure” reads “in the course of a procedure established under any other Act of Parliament”. The Liberal Party's amendment would add, at the end of that paragraph, “including the Conflict of Interest Act”. When I search the Conflict of Interest Act, the word “disclosure” doesn't come up. I have a problem with mentioning an act that makes absolutely no reference to disclosure, protected or otherwise. As far as I'm concerned, the provision can't apply.
[English]
[Translation]
Thank you, Mr. Chair.
Mrs. Vignola is absolutely right. The idea here is to clarify our definition, but if committee members are not in favour of that, we can drop it. That was just the beginning, so people know that it will apply in this case. We will defer to the will of the committee.
[English]
Mr. Fergus is offering to drop it. Do we have UC for him to withdraw?
Some hon. members: Agreed.
The Chair: Thanks, colleagues.
The next one up is Mr. Fergus, I believe. It's G-2, which is on page 4 of the original package.
[Translation]
If my fellow members agree, Mr. Chair, I recommend that it be withdrawn in favour of amendment BQ‑2.
[English]
We'll assume that you don't move it, and we'll go right to the next one, which is BQ-2.
Thanks, Mr. Fergus.
We're on BQ-2 now, colleagues, which is on page 5.
Go ahead, Ms. Vignola.
[Translation]
Our amendment is simply to delete lines 3 to 9 in clause 3 on page 2. With these lines, the bill would need a royal recommendation, but a private member's bill cannot receive a royal recommendation. That's why the Liberal Party had proposed the same change in G‑2.
[English]
Thank you, Ms. Vignola.
Again, like the previous one, if BQ-2 passes, NDP-2 cannot be moved due to a line conflict. They're both modifying line 7 on page 2.
Shall BQ-2 carry on division, colleagues?
(Amendment agreed to on division [See Minutes of Proceedings])
The Chair: We're now on G-3, which is on page 7 of the package.
Is that yours, Mr. Fergus?
Yes. Thank you.
This sets out the entire frame for what “reprisal” means and what would be considered a reprisal. It's consistent with some of the changes we made with BQ-2 in terms of what is a reasonable belief. It allows us to make it consistent throughout that section.
All right, Mr. Fergus. Thank you.
Colleagues, if G-3 is adopted, NDP-3, NDP-4 and CPC-1 cannot be moved due to line conflicts.
Go ahead, Mr. Garon.
[Translation]
It's a good amendment, and it captures the essence of the definition of reprisal that we had in mind. I'm a very emotional person, however, so I'm a little saddened because there are some good things in NDP‑4. I wonder whether Mr. Fergus would be open to a friendly subamendment to add to NDP‑3, on page 9 of the package of amendments, everything before paragraph (a), in addition to NDP‑4, on page 10 of the package, paragraphs (c.3) to (c.6)—
[English]
Mr. Garon, you're not a member of the committee, so perhaps someone sitting very close to your left might be able to fulfill such a role.
[Translation]
You dazzled him.
I'll explain the friendly subamendment we are proposing. It involves NDP‑3 and NDP‑4. Before paragraph (a) of the definition of reprisal proposed in G‑3, we would add the change to the definition proposed in NDP‑3, which reads as follows:
vant who made a protected disclosure, has refused to commit a wrongdoing or has cooperated
In addition, the new paragraphs (c.2) through (c.6) that NDP‑4 proposes to add to the definition of reprisal would instead be inserted after paragraph (d) of the new definition of listed measure proposed in G‑3.
In a nutshell, the NDP's proposed amendments would be incorporated into the Liberal Party's proposed amendment, providing greater clarity to the definition of reprisal and clarifying who it refers to, without overly broadening the scope of Bill C-290 or requiring a royal recommendation.
The witnesses talked a lot about reprisals, because they have experienced various forms of it. The word horror comes to mind, because no one would want to go through what they went through. Defining the word clearly would also eliminate any possibility of someone finding a loophole in the bill or the Public Servants Disclosure Protection Act that would give them the opportunity to retaliate against the person. That's why we're proposing this friendly subamendment.
[English]
[Translation]
My fellow member is proposing two things.
The first is to incorporate the substance of NDP‑3 into G‑3. I understand very well what she is proposing and I have no problem with it.
The second has to do with NDP‑4, specifically new paragraphs (c.2), (c.3), (c.4), (c.5) and (c.6). These elements are already implied in paragraph (d) of the definition provided in the current version of the Public Servants Disclosure Protection Act. If we include these paragraphs as the NDP has worded them, we will be restricting the scope of the actions in question. I don't think that's the intent, far from it. Therefore, it's best not to go forward with this proposal.
[English]
[Translation]
Mr. Fergus, I understand your point. I thought that the list proposed by the NDP was so comprehensive that it would cover absolutely every situation. I think Mr. Johns could probably elaborate on the reasons why his party proposed this amendment.
[English]
I think I had Mr. Garon and then Mr. Johns.
Mr. Garon, did you want to pass it over to Mr. Johns, or are you going to go first?
[Translation]
I'll be brief. The current act contains a definition of what constitutes reprisal:
(a) a disciplinary measure;
(b) the demotion of the public servant;
(c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
(d) any measure that adversely affects the employment or working conditions of the public servant;
(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).
It seems to us that both G‑3 and what the NDP proposes to add would improve the definition.
[English]
The goal is to expand the list of actions that constitute a reprisal, including psychological injury.
We heard from experts that reprisals are more often manifested as psychological assault and that the infliction of emotional distress is more stealthy and harder to catch and litigate than traditional forms of reprisals like firing and demotion. We also heard from witnesses who experienced severe psychological distress and lifelong psychological conditions resulting from this. Certainly, these need to be considered under reprisals.
I think this gives a better definition, and it broadens it. Basically, expanding the list is what we're looking to do.
[Translation]
Thank you very much, Mr. Johns. I understand that it's good to list things, but sometimes that can be perceived as imposing limits.
I have a question for the officials about paragraph (d) of the definition, which is on page 3 of the current act. The paragraph states, “any measure that adversely affects the employment or working conditions of the public servant”. That seems to open the door wide.
Ms. Laroche or Ms. Stevens, in your opinion, would listing these elements limit the scope of the act, and does the current definition already include them?
Thank you very much for the question.
In comparing the two, I have to agree with Mr. Fergus: the definition found in paragraph (d) is very broad. Working conditions, for example, can include any psychological, health, or wellness element of work. Whether that narrows or broadens the scope of the act depends on how it is interpreted by the commissioner and, subsequently, the courts. I would say it would have both effects, unfortunately, but I think the current definition is indeed very broad.
Ms. Stevens, would you like to add anything?
[English]
I would add that what could be missing from the NDP amendment is the similar type of catch-all that you have in paragraph (d) in the current act. By giving a list with no catch-all, it is more restrained than what is currently in the act.
[Translation]
Ladies, in the NDP amendment, there is no mention of removing paragraph (d) from the current definition in the act. As I understand it, in your view, if the committee decided to keep that paragraph and add the specific elements proposed in paragraphs (c.2) through (c.6) of NDP‑4, it would limit the scope of the bill, although all angles are covered.
That said, “any measure that adversely affects the employment or working conditions of the public servant” in no way includes mental or psychological retaliation. When we talk about measures that adversely affect someone's job, we often think of equipment and tasks, not the mental capacity necessary for the job. That capacity can be reduced because of psychological retaliation. This is why emotional distress should be added to the bill.
Also, anything family-related is not currently covered in the bill. I think many members of the committee have children or grandchildren. Goodness knows that when our child or grandchild is sick or being bullied at school, for example, our heads are not in the game. If someone is being retaliated against by their employer, who is supposed to be someone they can trust and, on top of that, their child is being bullied, it can cause emotional distress. The NDP amendments are intended to provide clarity in that regard.
That is my understanding of proposed paragraphs (c.2) to (c.6). I don't think they restrict anything. On the contrary, I think they are inclusive, which is something to keep in mind. That is my understanding of those paragraphs.
[English]
[Translation]
Thank you, Mr. Chair.
Mrs. Vignola, thank you for your comments.
In paragraph (d) of the definition of reprisal, the act refers to working conditions. According to the Canada Labour Code, that includes physical conditions and well-being at work, that is, emotional conditions. The employer therefore has to make sure that the employee is treated well, psychologically and physically, and that they are safe. You talked about what can happen outside work, but that is not the employer's responsibility, although the employer certainly has a duty to show compassion to its employees.
You could make the following compromise: the committee could add examples to paragraph (d) of the current definition in the act, which would emphasize some of the conditions that are important to the committee members. How to do this would need to be determined, and it might take some work, but it could provide a focus on the psychological and other elements that committee members consider important.
[English]
If Madame Vignola wouldn't mind, perhaps she could add something along the lines of, to work that in, “including but not limited to”.
[Translation]
It would be something like that, indeed, with the addition of the NDP's proposed list. Is that all right for everyone?
[English]
My apologies, Chair.
I want to ask Mr. Fergus why the government did not want the termination of a contract to be considered a reprisal.
Colleagues, if there is no one else, I'm going to suspend quickly so that one of our legislative assistants can go over to to Ms. Vignola to get all the details of the amendment. Then we will come back, read it and then vote on it.
Are we fine, colleagues?
We'll suspend for a few seconds.
Colleagues, we are back. I appreciate your patience.
Ms. Sauvé, who is one of our legislative clerks—whom we've called our law clerks and our legislative assistants—is going to read back for the record what the amendment is. It has been emailed to you.
Because we're combining what looks like NDP-3 and NDP-4 with amendment G-3, eventually a lot of paragraphs (a), (b), etc., will be very different, but that will corrected in the record.
For the sake of time, we'll just read the new amendment, then agree on it and move on, I hope.
Just to clarify, Mr. Chair, what has been circulated was the text of the subamendment proposed by Madam Vignola. Would you propose that I read the subamendment or the new G-3 as it would read with the subamendment included in it?
An hon. member: Read the new G-3 with the subamendment.
Ms. Marie-Hélène Sauvé: This is what G-3 would sound like. I'll start in the English:
That Bill C-290, in Clause 3, be amended by replacing lines 10 to 31 on page 2, with the following:
(4) The definition “reprisal” in subsection 2(1) of the Act is replaced by the following:
“reprisal” means any listed measure taken against a public servant because the public servant
We would have a new (a), which corresponds with NDP-3:
(a) has refused to commit a wrongdoing
Then we go back, so (a) becomes (b) and so on:
(b) has made a protected disclosure
Is it so far so good?
Mr. Majid Jowhari: That's beautiful.
[Translation]
Ms. Marie-Hélène Sauvé: With this subamendment, the amended wording of the second part of G‑3 reads as follows:
Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“listed measure” means, in relation to a public servant,
(a) a disciplinary measure;
(b) their demotion;
(c) the termination of their employment, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
(d) any measure that adversely affects their employment or working conditions, including but not limited to:
(d.1) the mandatory assignment or deployment of the public servant;
(d.2) any form of reprimand;
(d.3) any form of discrimination;
(d.4) the infliction of emotional distress;
(d.5) any act or omission that causes any psychological injury to the public servant;
(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d)…
[English]
Is the subamendment agreed to on division, colleagues?
(Subamendment agreed to on division [See Minutes of Proceedings])
(Amendment as amended agreed to on division [See Minutes of Proceedings])
(Clause 3 as amended agreed to on division)
(On clause 4)
The Chair: We'll start with CPC-2.
We're going to be here until 5:58, colleagues, because we started at 3:58. Hopefully we can at least get this one through.
Mrs. Kusie, go ahead on CPC-2.
If you're not tabling it, we don't have to withdraw it.
We're on BQ-3, then, which is on page 13 of the package.
[Translation]
This amendment seeks to amend clause 4 of Bill C-290 by replacing line 34 on page 2 with the following:
(b.1) a case of abuse of authority within the meaning of subsection 2(4) of the Public Service Employment Act;
The amendment defines abuse of authority by reference to an existing statute. A new definition is therefore not provided, and the current definition is not a major problem, as there is already a fairly broad consensus on its application. The amendment merely clarifies this point in what would be new paragraph 8(b.1) of the Public Servants Disclosure Protection Act.
[English]
I appreciate the intention of BQ-3. If it were up to me and I had a choice between BQ-3 and CPC-2, which has not been presented, I would choose CPC-2 because I think it accomplishes the same thing but allows for some further definitions that could be done by officials to make sure they spell out the process. They both speak to the same issue; they are both pretty clear, but I would go more with CPC-2.
Since we don't have CPC-2 available, is it possible to add to it a bit? Could we add some further definition, which could be done by officials? I'm afraid there is going to be a lot of overlap here with the Public Service Employment Act. There could be some things that might not work. They are almost equal, but I think it requires some further definition, which is the advantage that CPC-2 had.
[Translation]
[English]
[Translation]
Thank you.
Someone said earlier that we should avoid having several definitions of the same term in different statutes. Here, however, we are referring directly to a definition that already exists and represents a consensus. The subamendment that my colleague is considering would be tantamount to allowing public servants, themselves, to define, by regulation, what constitutes an abuse of power, even if the definition already exists. I don't want to insult anyone, but I am trying to make sense of this.
[English]
[Translation]
Does the Public Service Employment Act contain a definition of abuse of authority? If so, what is it?
Thank you for the question.
I don't have the definition in front of me, but I know that it specifically relates to hiring and staffing.
If you take a definition that is applied in a narrow framework and then apply it in a broader framework, it could be missing some things, or it could be interpreted as being only related to staffing. That's the difference in terms of the definition contained in the Public Service Employment Act.
[English]
[Translation]
In fact, when I look at the definition of “abuse of authority” in the Public Service Employment Act, I find it to be very broad. It reads as follows:
References to abuse of authority
(4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.
Certainly, this definition can apply to the hiring of an individual, but it falls within very general definitions and may apply very broadly as well. With all due respect, it does not say that this definition only applies in the context of hiring. It's a general definition. That's why we used it.
[English]
From a very technical standpoint, it isn't a definition in the Public Service Employment Act. It's called a reference, which says, “For greater certainty”. It includes bad faith and personal favouritism. It doesn't actually, as a whole, define the term. It is telling you part of what is included but not the entire thing.
It's more for the purposes of hiring. In its current form, it is not to show favouritism in hiring public service employees.
[Translation]
Mr. Chair, I think Mrs. Vignola would like something that covers a range of situations and not be limited to what already exists in the Public Service Employment Act. That is my goal. I don't know if our legal experts can give us an interpretation.
[English]
[Translation]
In the Public Service Employment Act, it is not just hiring that is referred to when it comes to abuse of authority. Subsection 65(1) mentions layoffs being an abuse of authority. That doesn't have to do with hiring someone; it has to do with laying them off, which is the complete opposite.
Further on, subsection 77(1) of the act provides as grounds for complaint any “abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority” and “an abuse of authority by the Commission in choosing between…internal appointment process”. While both of those grounds relate to looking for or being hired for a job, the act does not address only the hiring of an individual.
That said, I suggest we move to a vote to settle the issue. The definition in the Public Service Employment Act is already very broad. If our amendment is defeated, we will decide what to do next, and if we need to put forward something else, we will.
[English]
Thank you, Mr. Chair.
After hearing Mr. Fergus's support of CPC-2, as well as the definition as clarified by Ms. Stevens, and in consultation with Mr. Garon, I will be asking for unanimous consent to add, once again, CPC-2, as it seems to have voiced support from the government and perhaps addresses the concern outlined by Ms. Stevens, which I believe Madame Vignola has concerns about as well.
I'm asking for unanimous consent to reinsert CPC-2, please.
Thanks, Mrs. Kusie.
We have two options.
Ms. Vignola, if you agree, we could ask for unanimous consent to withdraw yours, and then we can go to that.
Do we have unanimous consent to withdraw?
Some hon. members: Agreed.
(Amendment withdrawn)
The Chair: Great. We're back to CPC-2.
I'm sorry. I thought we had agreed to it on division. Is that correct?
(Amendment agreed to on division [See Minutes of Proceedings])
The Chair: I'll go to Mrs. Block, but I'm going to suggest that we just adjourn for the day and take this back up on Wednesday. We will be in room 410, which has limited space, so please keep that in mind before we invite such a large, involved crowd. Just be advised of that.
We have Mrs. Block and then Mr. Barrett and Ms. Vignola.
Thank you very much, Mr. Chair.
I want to thank you for shepherding us through the very few amendments that we've managed to get through today.
I also want to register, formally, my frustration in having 12 amendments table-dropped half an hour before committee, especially given the extension of 10 days to submit them to the clerk.
I would suggest that, going forward, any subamendments should be brought to the committee ready to be provided to members; that we work ahead in preparation for the rest of the amendments we're going to be dealing with; that, if there are subamendments we want to propose, we speak to our colleagues ahead of time and come prepared; and that perhaps a new package of amendments be tabled or sent to us with the ones tabled today. I think that would help us with some of the confusion that was created.
Yes.
Just to confirm, there wasn't enough time to update the package, but the 12 amendments that were received today will be included in the package. We'll send a new version of the package and of the agenda for the next meeting.
Just for the business of the committee, I'm supremely confident—or maybe optimistic—that we can move through this during the scheduled two hours at our next regular meeting.
We have a need to hear from department officials on the production of documents related to a different study. I'm just wondering if the plan is for that to be scheduled during regular committee time on the Monday following the return from our constituency week, two weeks from today, or if that's going to be in extra innings this week.
That's just so there's an understanding and an agreement in principle in this room that we're going to get to that. It may help us focus our minds to achieve the optimistic outcome that I think we're all hoping for at Wednesday's meeting with respect to moving through clause-by-clause.
Yes, that is a priority for me. Monday and Wednesday, June 5 and 7, two weeks from now, we will have the departments. A lot of them have already responded. We did have some time possibly on Wednesday, but with the way things have been going and with the lack of resources and the cancellations, I decided not to go ahead and add it for this Wednesday from 6:30 to 8:30.
It will be the first Monday back—
I'm sorry. It's June 5 and 7. On May 29, it's PSPC for the estimates. On the 31st, it's Treasury Board for the estimates. On the 29th, we're voting on the main estimates.
It's June 5 and 7.
I'm getting my calendars mixed up, but yes, it's June 5 and 7 in our regular allotted two-hour period at 3:30 and then at 4:30 for the departments.
Thank you for bringing that up, Mr. Barrett.
We have Ms. Vignola and then Mr. Fergus.
[Translation]
I'll be brief. At the beginning of the meeting, we agreed that in exchange for the Bloc withdrawing BQ‑1, the committee would adopt CPC‑3. I would like us adopt that amendment, to tie up this loose end with CPC‑3 and start fresh at the next meeting. I would like us to do what we agreed to at the beginning of the meeting, which is to adopt CPC‑3.
[English]
[Translation]
Mr. Chair, that's basically what I wanted to suggest. By starting fresh, we can save our analysts and experts from having to do work that is no longer relevant. We need to make sure that the plans or proposals are renumbered consistently. That's it. The idea is not to go backwards.
[English]
Shall CPC-3 carry, then, colleagues, on division?
(Amendment agreed to on division [See Minutes of Proceedings])
The Chair: That was a wonderful suggestion, Ms. Vignola.
Thank you, Mr. Fergus.
Thank you, colleagues.
It was a slow start, but we actually made it through a bunch. There are not quite as many in the last several pages. Hopefully we'll finish this up on Wednesday.
If there's nothing else, colleagues, we will adjourn. Thank you very much.
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