Brief submitted to the Standing Committee on Government Operations and Estimates on May 12, 2023
I am pleased to share my views on Bill C-290, An Act to Amend the Public Servants Disclosure Protection Act. My Office is an independent body responsible for the external whistleblowing regime for the federal public sector, and was created pursuant to the Act in question. Any changes to the Act will have a significant impact on my Office and our work.
In 2017, the committee undertook a review of the Act and provided a number of recommendations for amendment, including several stemming from my testimony. Bill C-290 contains six of the 16 recommendations I made, and a number of others with varying potential impacts. Among those in line with my previous recommendations are the removal of the good faith requirement for both disclosures of wrongdoing and reprisal complaints, as well as the reversal of the burden of proof at the Public Servants Disclosure Protection Tribunal. I fully support these proposed amendments, and they have the potential to improve the Act and provide better protection to those who come forward.
Bill C-290 also includes some clauses that would impact the confidentiality provisions of the Act. For example, the Bill proposes the inclusion of a new section that would require the Commissioner to seek consent from individuals before disclosing their involvement in an investigation. While confidentiality is a pillar of our work, there are instances in which it is legally necessary, due the principles of procedural fairness and natural justice, to divulge information that may identify those involved in an investigation. It is sometimes necessary for my Office to verify a witness’s evidence with other people involved in the investigation. For example, my last Case Report, tabled in Parliament in October 2022, illustrates this operational requirement. During the investigation, it was necessary to share witnesses’ accounts of mistreatment and lying by the wrongdoer in order to corroborate the testimony of others who were there at the time.
In addition to my previous recommendations to strengthen confidentiality in disclosures of wrongdoing and reprisal complaints made as part of the 2017 legislative review, we have learned from recent experience that there is an essential need to include in the Act new confidentiality provisions related to court proceedings. The Act provides an exclusion from the Access to Information Act, so that individuals are not able to use an access request as a means of circumventing confidentiality provisions. However, this exception does not extend to court proceedings. In the past, during judicial reviews of my decisions made under the Public Servants Disclosure Protection Act, my Office has attempted to protect the names of disclosers and witnesses by redacting the information from court documents, but we have had limited success. The requirement to produce unredacted documents stems from the open court principle, and the courts have found that this supersedes the Act. In the interest of better protecting whistleblowers, I recommend the inclusion of a clause that would protect the identity of disclosers and witnesses obtained during an investigation, should it be subject to a court proceeding. The Public Interest Disclosure Act of Manitoba provides an example of what such a clause might look like.
Bill C-290 also expands the definition of public servant to include contractors. Currently my Office takes an inclusive approach in our interpretation of who is a public servant under the Act. Should our analysis of a case determine that an individual is in an employee-employer relationship with a public service employer, then we consider them a public servant for the purposes of the Act. Contractors are also able to make disclosures as members of the public, as are all Canadians.
In what I assume is an effort to increase transparency, the Bill recommends that my Office’s Annual Report include a number of new and specific types of information, including information about which organization and regions have been subject to investigations. Reporting on organizations and regions in cases where allegations are not founded, has the potential of negatively impacting confidentiality of whistleblowers and witnesses. It is also important to note that the number of allegations made within or about an organization is not an effective indicator of wrongdoing. In some cases, a high number of disclosures coming from a single organization could indicate a healthy culture that supports whistleblowers, leading to many more people coming forward, even in cases that do not lead to an investigation.
Bill C-290 also seeks to include new types of reprisal to the Act, such as termination of contracts for goods and services. The Act already provides protection for contractors under subsection 42.2(1). including contractors in the reprisal protection regime under the law would require the Tribunal to rule on contract law, instead of reprisal complaints.
The Bill also contains significant changes to the definition of reprisal, to include public servants who witnessed another public servant making a disclosure, those who have collaborated with a public servant in making a disclosure, those mistaken for disclosers, and contractors. While in principle it is desirable to protect as many people as possible, there is a danger that such a broad application could impact the effectiveness of the regime, making it extremely difficult to administer. It may become impossible to establish a link between a disclosure investigation and a reprisal, and this link is foundational to the regime.
Bill C-290 recommends the removal of paragraphs 20.4(3)(b) and (d). It is not clear why this deletion is being proposed. This deletion would limit the ability of the Commissioner to apply to the Tribunal in cases where the investigation could not be completed due to a lack of cooperation. In cases where a deputy head or alleged repriser are unwilling to participate, it is reasonable that the Commissioner be able to make an application to the Tribunal. Without this power, reprisal investigations can effectively be stopped by unwilling and potentially culpable parties.
Clause 24 of the Bill would create an audit function for the Commissioner. This is ultimately a policy decision for Parliament. However, it may create a conflict between the investigative and audit functions of the Office. It is my belief, that this role properly belongs with the Treasury Board Secretariat, as the central agency responsible for the policy guidance and administration of the internal regime. My Office is an external and independent investigatory body, and not designed or well placed to judge the efficacy or compliance of internal disclosure mechanisms.
The proposed amendments that I find the most problematic, and that I would urge committee Members to very closely consider, are those that would redefine wrongdoing, by removing important qualifiers. Namely, the removal of the word “gross” from the phrase “gross mismanagement” and the removal of the word “serious” from the phrase “serious breach of a code of conduct.” My Office has developed and made public a list of criteria we use for determining whether an allegation would meet the threshold of “serious” or “gross.” This non-exhaustive list guides our work in determining whether an allegation will be investigated, as well as supporting our determination of whether wrongdoing has occurred.
It is my understanding, and has been stated by the courts, that the purpose of the Act is to shed light on wrongdoing the magnitude of which would shake the public’s confidence in the public sector. These changes would create a brand new regime with a different purpose, by requiring my Office to investigate substantially more disclosures. In any organization, there may be instances of individuals making mistakes or minor infractions. These incidents can and should be dealt with by management, through discipline, alternative dispute resolution, grievance processes and other tools. My Office is not here to replace the management function of the entire public sector.
Finally, our work is guided by public sector values, including stewardship—that is, the responsible use of government resources. Bill C-290 would remove restrictions within the Act that prohibit individuals from seeking recourse through our Office while another more appropriate recourse mechanism is already underway, leading to a duplication of our effort. The Bill also proposes a major change to the reprisal protection regime, by allowing individuals to proceed directly to the Tribunal in cases where I decide not to refer a reprisal complaint. This type of direct-access system exists at the provincial level in the Ontario Human Rights Tribunal. The decision to allow direct access is one of policy. I will note, however, that it is not a prudent use of resources to require my Office to investigate a reprisal complaint if the results of the investigation can simply be put aside.
I conclude by noting that I believe the Act can and should be improved through amendments, some of which are captured in Bill C-290. However, there are clauses included in the Bill that would drastically change the character of the regime, and that could prove seriously problematic at a practical level. I have noted that the President of the Treasury Board has been tasked with a review of the Act with a view to potentially amending it, and I look forward to providing input into that process as requested.