Harriet Solloway's Opening Remarks before NDDN - February 26, 2024

Appearance before the Standing Committee on National Defence (NDDN)

Good afternoon, Mr. Chair.

I am pleased to have the opportunity to speak about whistleblowing protections in the federal public sector.

The Office was created in 2007 under the Public Servants Disclosure Protection Act, as part of the federal government’s accountability initiative. My Office provides a confidential mechanism for public servants and members of the public to disclose wrongdoing in the federal public sector as defined in the Act. It is important to note that the Act has a very specific definition of what constitutes a wrongdoing. Not all wrongdoings in the general sense of the word, are covered. The Act also provides that public servants and former public servants may file reprisal complaints related to disclosures of wrongdoing. As an Agent of Parliament, my position ensures independence and neutrality.

My Office cannot investigate disclosures related to the Canadian Armed Forces, the Communications Security Establishment or the Canadian Security Intelligence Service. Pursuant to the Act, these organizations must maintain their own internal disclosure regime. My Office is, however, able to investigate disclosures related to the Department of National Defence and reprisal complaints from current or former public servants working for DND.

The Act also provides that federal organizations that fall under the Act must establish in-house processes—that we refer to as “internal regimes”—under which a Senior Officer for Disclosure must be designated and vested with a mandate that mirrors that of Office of the PSIC. The Treasury Board Secretariat is responsible for the administration of internal regimes. Under the Act, public servants have the option to make a disclosure of wrongdoing to their manager or to their Senior Officer for Disclosure through the internal regime at each organization, or to come directly to my Office to access the external whistleblowing regime. The choice is theirs.

My Office establishes standardized processes for handling disclosures and reprisal complaints, including service standards for various stages in the process, and clear policies to support decision-making. These internal processes are intended to ensure the consistent and fair treatment of cases. They are reviewed on an ongoing basis and are periodically amended to optimize efficiencies.

Any individual may make a confidential disclosure of wrongdoing to my Office by submitting a form online, via fax or mail, or in person. Once received, disclosures are analyzed to determine if they fall under my jurisdiction, and whether the allegations could constitute wrongdoing as defined in the Act. Analysts may reach out to the discloser for further information during this time.

In cases where I do not launch an investigation, the discloser is informed in writing of the reasons for my decision, and the matter is closed. In cases where additional, significant information becomes available, I may reconsider that decision.

In cases where I decide to launch an investigation, the deputy head of the affected organization is contacted, as well as the discloser and the alleged wrongdoer, and the investigation begins. We have a service standard for completion of investigations within 12 months. Investigations can include interviews with witnesses and the alleged wrongdoer, as well as the collection and examination of documents or other evidence. Throughout the process, my Office respects the right to procedural fairness and natural justice for all involved parties.

At the conclusion of an investigation, I will make a decision about whether wrongdoing has occurred based on a balance of probabilities. In founded cases of wrongdoing I have 60 days to table a Case Report to Parliament that includes information necessary to describe the wrongdoing. Case Reports also include my recommendations for corrective action, and the Deputy Head’s response to those recommendations. To date, my predecessors have tabled 19 case reports.

I recognize that blowing the whistle is difficult, and we take very seriously our obligation to maintain the confidentiality of those who come forward. The same obligation is incumbent on those who administer internal regimes. The identity of a discloser is never shared by my Office. Nevertheless, it is possible that the identity of a discloser may become known through other sources and may be subjected to reprisal as a result. When that happens, the discloser may file a reprisal complaint with my Office. The process for receiving and handling reprisal complaints is similar to that for disclosures, but the Act requires that I make a decision whether to investigate within 15 days. Worthy of note is that a reprisal complaint may also be filed by a person designated by the public servant or former public servant for that purpose, a modality that promotes accessibility.

My Office has the exclusive jurisdiction to deal with reprisal complaints arising from disclosures made under the Act. The purpose of my Office’s investigation into a complaint is to determine whether there are reasonable grounds to believe that a reprisal was taken against the complainant, and if so to refer the complaint to the Public Servants Disclosure Protection Tribunal. At any time during an investigation, my Office can offer conciliation to the parties to try to resolve the complaint.

Conciliation and mediation are important tools that optimize outcomes for the parties. To date, my Office has funded and coordinated 24 successful conciliations, and referred nine cases to the Tribunal. The Tribunal has resolved six of these referrals through mediation and settlement, and dismissed two referrals. The ninth referral was made in 2023 and the Tribunal process is underway.

Thank you for the opportunity to provide information about my Office and the external whistleblowing regime for the federal public sector. I look forward to questions from Members.