Speeches and Interviews
February 17, 2005
Speaking Notes for Pierre Nollet - Bill C-11: Brief to the Standing Committee on Government Operations and Estimates
Mr. Chairman: Thank you for inviting us to appear before this Committee on the subject of disclosure of wrongdoing, and particularly the protection of persons who disclose wrongdoing.
Certainly, much has transpired since we were last before this Committee in May to impart CBC/Radio-Canada's position on what was then Bill C-25, and we are grateful for the opportunity to contribute our views to your consideration of Bill C-11.
As was the case with the former Bill C-25, CBC/Radio-Canada fully supports the principles of this legislation.
CBC/Radio-Canada embraces the need to both protect any person who would disclose wrongdoing, and to establish suitable mechanisms to ensure transparency, accountability, financial responsibility and ethical conduct.
As drafted, Bill C-11 recognizes the essential value of public institutions, including CBC/Radio-Canada, to Canada's parliamentary democracy and the importance of ensuring public confidence in the integrity of those who serve the public.
CBC/Radio-Canada both recognizes and appreciates that its views and concerns with respect to the former Bill C-25 were taken into account in planning, developing and drafting this new Bill, which has now come to Committee for review.
Today, we would like to provide the Committee with an update on CBC/Radio-Canada's activities since our May appearance, and share the Corporation's perspective on some of the language of the proposed Bill.
Establishment of internal disclosure procedures
At our last appearance, CBC/Radio-Canada pledged to this Committee that it would proceed with the development of a whistleblowing policy, that would meet the Government's objectives.
The Corporation has since made good on this promise. Prior to the tabling of this Bill, the Board of Directors adopted a corporate policy on Internal Disclosure of Information Concerning Wrongdoing in the Workplace. We have met with the unions twice — before and after the policy was adopted by the Board. Employees were informed of the new policy this past November. Implementation is now underway, and employees have been advised that the Corporation's policy and guidelines might need to be adjusted, as required, to ensure alignment with the Government's legislation.
CBC/Radio-Canada's policy provides for a process whereby disclosure can be made to the employee's immediate supervisor, to the executive of the Corporation who is responsible for this policy — myself, in this case — or to an independent officer appointed by the Board of Directors. The process is confidential. The Shared Services Organization, a group created to improve the efficiency of CBC/Radio-Canada's IT, Human Resources and Finance operations, was given the mandate to support the disclosure process, to implement measures to protect confidentiality, and also to provide relevant authorities with progress reports. The process is supervised by the Board of Directors' Audit Committee, whose members are independent of management and Government. Where necessary, investigations will be conducted either by the Corporation's Law Department or by the independent officer, who may be assisted by the internal auditor from a reputable accounting firm.
The policy guarantees that employees will not face reprisals for disclosing wrongdoing. It does not create new disciplinary measures for employees who make disclosures in bad faith.
CBC/Radio-Canada's freedom of expression
CBC/Radio-Canada has since the outset sought to maintain a balance between its steadfast support of the principles of this legislation and the need to ensure the Corporation's journalistic, creative and programming independence, as set out in the Broadcasting Act. CBC/Radio-Canada does not want whistleblowing legislation to prevent its journalists from freely investigating acts of wrongdoing. This paramount concern was taken into consideration in the amendments made to the Bill. Section 18 of the Bill attempts to reflect this principle. Greater legislative clarity would be achieved if the Bill made reference to the principles of freedom of expression and journalistic independence, as outlined in the Broadcasting Act. We suggest wording to this effect in Exhibit 1, which I have provided to the Clerk.
Similarly, section 32, with respect to requests by the President of the Public Service Commission, attempts to protect freedom of the press. The concept of "undue disruption of the gathering or dissemination of news" does not exist in law. Consequently, we suggest that you replace it with a concept taken from the Broadcasting Act. In effect, it would be preferable to use the concept outlined in paragraph 46(5) of the Broadcasting Act, which emphasizes the scope of "freedom of expression" and journalistic "independence" (see Exhibit 1).
Establishment of a Code of Conduct
Section 5 requires Treasury Board to establish a Code of Conduct for the federal public sector. Section 6 indicates that chief executives of federal departments and organizations may also establish their own codes — tailored to meet the needs of their organizations — provided that they are consistent with the Treasury Board's Code of Conduct. Given that CBC/Radio-Canada already has in place a Code of Conduct that governs the daily performance of its employees and that takes into account the Corporation's distinctive characteristics, we would value greater legislative clarity as to which Code would apply in what context or circumstance. Finally, clarification as to the legislator's intended meaning of "bargaining organizations" in Section 5(4) would also be welcome with respect to the development of the Treasury Board's broader Code. Certainly, CBC/Radio-Canada would want to be consulted if another Code of Conduct is to apply to the Corporation. The term "bargaining organization" does not deal with this matter.
My yearly meetings both with the office of the auditor general and my other colleagues from various Crown corporations convince me that CBC/Radio-Canada is well known among Crown corporations for being at the leading edge of corporate governance standards. We continually stay abreast of developments in this area. It's important that Canadians be able to place their trust in us. I am hoping that we have done a clear demonstration of this today.
Again, I am grateful for the Committee's invitation to appear and for the consideration that has thus far been given to CBC/Radio-Canada with respect to this legislation.
I am certain that Bill C-11 can meet our shared objectives of ensuring transparency, accountability, financial responsibility and ethical conduct without constraining CBC/Radio-Canada's journalists from continuing to report publicly on acts of wrongdoing, or unduly encumbering the creative, journalistic and programming independence that is fundamental to CBC/Radio-Canada's ability to fulfill its mandate as the national public broadcaster for the benefit of all Canadians.
EXHIBIT I
Section of Bill C -11 |
Current text or summary of same |
Comment |
Proposed rewording |
Sections 5 & 6 |
5 (1) 6 (1) |
As drafted, two codes of conduct may potentially apply simultaneously to one organization. There is no indication as to which will apply in what context. Why is there authority for a chief executive to establish one if the Treasury Board one is mandatory? If the code of conduct of an organization does not mirror Treasury Board, do employees still benefit from protection when there is a breach and does the process for disclosure apply? Given that CBC/Radio-Canada has separate collective agreements (from the rest of the public sector) are we to assume that the definition of bargaining organizations include both its unions and CBC/Radio-Canada as employer? |
Provide for a code of conduct established under section 6 to have precedence over the code of section 5 when such code is approved by Treasury Board. Clarify meaning of bargaining organizations. |
Section 18 |
Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose. |
The intent is not clearly reflected. We believe the intent is to allow CBC/Radio-Canada to use the information it receives or collects (whether or not it relates to the public sector and whether or not it has followed the appropriate process) to perform its duties to inform the public without its employees having to fear disciplinary measures. This concept is referred to as "freedom of expression" and journalistic, creative and programming independence in the Broadcasting Act. The same concepts should have been used here. |
Nothing in this Act relating to the making of disclosures is to be construed as applying to the gathering and dissemination of news and information by the Canadian Broadcasting Corporation or construed so as to interfere with the freedom of expression and journalistic, creative and programming independence enjoyed by the Corporation, in the pursuit of its objects and in the exercise of its powers. |
Section 32 |
With respect to the Canadian Broadcasting Corporation, in making a request referred to in section 29 or in exercising the powers in section 30, the President of the Public Service Commission must consider whether doing so will unduly disrupt the gathering and dissemination of news and information by the Corporation. |
Canadian laws do not contain any concept of undue disruption of the gathering and dissemination of news and information. The Broadcasting Act already contains language ensuring the journalistic independence of the Corporation and the Canadian Charter of Rights and Freedoms contains the relevant references to freedom of expression. There is ample case law on its corollary, the right of the public to information. For reasons indicated above in respect to section 18, the Bill would be clearer if we referred to concepts already found in the Broadcasting Act. |
With respect to the Canadian Broadcasting Corporation, in making a request referred to in section 29 or in exercising the powers in section 30, the President of the Public Service Commission shall not disrupt or interfere with the gathering and dissemination of news and information by the Corporation and must respect the freedom of expression and journalistic, creative and programming independence enjoyed by the Corporation, in the pursuit of its objects and in the exercise of its powers. |
