Standing Committe on Government Operations and Estimates (OGGO)
Tuesday, February 14, 2017, 8:45 a.m.
Mr. Chair, I would like to thank the Committee for inviting me to appear before you this morning.
Joining me are France Duquette, Deputy Commissioner, and Brian Radford, General Counsel.
I am delighted to be here to discuss our experience in administering the Public Servants Disclosure Protection Act, as it applies to me, and to have the opportunity to present you with concrete proposals which, I think, could contribute to a stronger and more responsive federal public sector whistleblowing regime.
The proposed amendments are based on our 10 years of experience in dealing with more than 750 disclosures of wrongdoings and more than 250 complaints of reprisal. They are also influenced by the experience of other legislation, at both domestic and international levels and can be grouped under three main goals.
First, to facilitate and encourage the making of disclosures of wrongdoing, including clarifying and emphasizing confidentiality issues.
Secondly, to remove practical barriers for my Office to effectively carry out its investigative operations.
And finally, and of essential importance, addressing the unreasonably heavy burden placed on the shoulders of reprisal complainants and strengthening the protection offered to them.
Before discussing the details of the proposals, I would like to take a few minutes to discuss the context within which we conduct our work.
In the words of Madame Justice Elliott of the Federal Court in a recent decision: the whistleblowing regime established under the Act “addresses wrongs of an order of magnitude that could shake public confidence if not reported and corrected,” and if proven, involve “a serious threat to the integrity of the public service.” It is my view that we were not established to address every problem or issue that might arise across the public sector, but rather, those situations serious enough to warrant Parliament’s direct attention or the involvement of an adjudicative body such as the Tribunal.
In carrying out my duties under the Act, I should emphasize that I am not an advocate for any party but rather I am a neutral decision-maker who is required to be objective and impartial, to respect all parties’ rights to procedural fairness and natural justice.
I am confident that you will agree that there cannot be an effective whistleblowing system without a culture shift – where speaking out about potential wrongdoing is an accepted part of public sector culture and where this can be supported and responded to in a climate free from fear of reprisal. I believe that over time, this can be achieved. We are still in the first generation, so to speak, of implementing this legislation, but the opportunity now exists with this legislative review to move us closer to our goal.
With this in mind, I must also stress that my Office of 30 dedicated professionals with a total annual budget of about $4.8M, cannot do this alone. A change in thinking, in which whistleblowing is “normalized”, takes more than one piece of legislation and more than one Office such as mine. It requires an ongoing, collective commitment. I am one part of that collective commitment but we must be realistic in accepting that first, the fear of reprisal exists, and secondly, that a larger shift has to occur before that fear can be diminished, if not eliminated.
And this fear is very real. Over the years, my Office has made efforts, within its capacity, to collect information on this topic and try to identify ways to diminish the fear. Two public opinion research projects were commissioned by my Office, the most recent one being in the fall of 2015, which highlighted, among other things: “that there has to be more buy-in from upper management in order for there to be any real change in terms of the acceptability of whistleblowing. These changes across the public service, in other words, generally need to trickle down to the managerial level in order to result in palpable change”. My Office also has recently commissioned and will soon be releasing a research paper on the fear of reprisal. I will provide the Committee with that paper immediately upon its completion. And to advance that discussion, I would encourage every public servant and every chief executive to make whistleblowing part of ongoing and open conversations in the federal workplace. Recognizing that the fear exists is the first step in addressing it.
One other observation I would like to make is that the field of whistleblowing is one of rapid growth, with new systems being designed and adopted across a broad range of public and private sector organizations. I can say that many provinces and territories have adopted whistleblowing legislation that contain many similarities as ours. What we know, as well, is that our federal model has very distinct features such as my independent Office dedicated to whistleblowing and a dedicated Tribunal to hear cases of reprisal. Even between countries with similar legal and governance systems, there are differences in whistleblowing regimes.
While there are core principles that are generally adhered to in any regime, one of the key challenges is designing a whistleblowing program that responds to the particular needs and interests of the stakeholders it is serving, and one that also takes into account the overall context in which it operates, including the existence of other recourse mechanisms. I believe this must be kept in mind as we take a critical look at our own system. The Act creates a whistleblowing regime designed specifically for the Canadian federal public sector, and I hope that the lens through which we examine the legislation in this review process is one to ensure that we are creating a system that responds to the needs of Canadians in having an effective and trustworthy public sector.
With these observations as background, I would like to identify some key recommendations for legislative change that are among those presented in my written submissions. I have made every effort in carrying out my duties as Commissioner since my appointment in 2015, to identify opportunities to affect positive change by way of adopting policies and practices to address uncertainty in the law or to clarify, for example, how I use the considerable discretion given to me under the law. I have done this to ensure that our discussions are focused only on those issues that require, in my view, formal legislative amendment in order to support our effective work. I would preface this discussion by saying that the 16 recommendations I am making are those which I believe require legislative amendment to properly achieve the desired outcome of the Act.
So, turning to those recommendations for legislative change, I will highlight one in each of the broad categories I mentioned at the outset of my remarks:
With specific respect to reprisals, our goal is to lessen the considerable burden facing potential victims. In addition to recommending very important changes, such as giving the Tribunal the power to order interim remedies and the reimbursement of legal fees for the complainant, I want to draw your attention to my proposal that once a case goes to the Tribunal that a reverse onus of proof is established. In other words, the complainant, the party with the least resources and the least power, does not have to prove that a reprisal took place; rather, the employer has the onus to prove that what occurred was not reprisal. I feel strongly that this is fair and just, as it seeks to level what is otherwise an uneven playing field. I was pleased to hear that previous witnesses supported the same recommendation.
I am also proposing recommendations to encourage and support confidence and trust in the regime established under the Act. A key recommendation in this regard is the removal of the “good faith” requirement for a whistleblower or reprisal complainant. While this may initially strike you as counter-intuitive, in reality, having this requirement incorrectly focuses attention on the motivation of the whistleblower, rather than the actions being reported. The test should be whether the person believes the information to be true, not what motivated them to come forward.
We are also, as you will see in my submissions, making recommendations to strengthen and clarify the provisions that enable our protection of confidentiality. I simply want to underscore, in my opening remarks, the importance of confidentiality in any whistleblowing regime.
In that regard, I would like to come back to something that was said before this Committee last Thursday and that is of high concern to me and my Office. A witness stated that the first thing we do when receiving a disclosure is to inform the Deputy Head and communicate the name of the discloser. If there is one thing that we are extremely careful about protecting, it is the identity of the whistleblower. I do hope that it was not what the witness intended to say. I will gladly respond to any questions regarding our processes in that regard.
Another theme of our recommendations is addressing barriers to our ability to do our investigations. I draw your attention, in this regard, to one proposed amendment in particular. The Act currently prevents my Office from obtaining information from outside the public sector. This is a significant limiting factor in our gathering of evidence. For example, information in the hands of retired public servants is not technically within our reach; nor is information in the possession of third parties outside of the public sector. My request and recommendation is to simply repeal that section of the Act to remove a clear barrier to my ability to carry out a full investigation.
In closing, I would like to say that our recommendations aim to strengthen and support responsiveness, effectiveness and accessibility in a way that I am confident will increase the trust of public servants in the regime that is aimed at protecting them.
I will now be happy to answer any questions you might have. Thank you Mr. Chair.