Government Operations Committee on May 12th, 2009

[The Chair, Liberal, Derek Lee]

I call this meeting to order. I see a quorum.

Colleagues, we're dealing with main estimates. We have as witnesses the Office of the Public Sector Integrity Commissioner, Ms. Christiane Ouimet. Along with her we have Henry Molot, the deputy commissioner, and Mr. Joe Friday, general counsel.

We're delighted to have you.

I understand that you'll begin with an opening statement. This particular office is relatively new in the scheme of things, in the history of the country, so hopefully your opening remarks will touch on functions and responsibilities. We will then go to questions.

The microphone is yours.

[Christiane Ouimet, Commissioner, Public Sector Integrity, Office of the Public Sector Integrity Commissioner]

Thank you very much, Mr. Chair.

I'm very pleased to appear before the Standing Committee on Government Operations and Estimates, and yes indeed, Mr. Chair, we'd like to discuss the mandate and the rather complex work of my office and hopefully present you with a clearer idea of the mandate that has been given to us, but as well, of the quality of the work of my office as it carries out its mandate.

It is an honour to have been appointed Canada's first Public Sector Integrity Commissioner, by joint resolution of both Houses of Parliament in August 2007. My office is responsible for implementing the Public Servants Disclosure Protection Act. Our mandate under this legislation is, first, to establish a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoing committed in the public sector; and second, to protect from reprisal public servants who have disclosed wrongdoing and those who are cooperated in investigations. In short, it's one act, two regimes: disclosure of wrongdoing and protection against reprisal.

Our ultimate goal is to enhance public confidence in our public institutions and in the integrity of public servants. In fact, the preamble of our act expressly recognizes that the federal public administration is part of the essential framework of Canadian parliamentary democracy, and that it is in the public interest to maintain and enhance confidence in the integrity of public servants through a disclosure and reprisal protection system. We are guided at all times by the essential concept of the public interest.

I would also like to emphasize the key role that our public institutions play in the lives of all Canadians, and this role is never more important than in times of economic uncertainty. Strengthening our federal public administration, in whatever way possible, is both an expectation and obligation on the part of my office.

Our second report is built around the theme of “Building Trust Together: A Shared Responsibility“. Three guiding principles: inform, protect and prevent are the key pillars of our work, and I will use these three principles to frame my submissions to you today.

First, inform.

My office has jurisdiction over the entire public sector, with the exception of security establishments, and goes beyond the core public service. It includes, for instance, crown corporations. That constituency is approximately 400,000 employees. In addition, our act specifies that members of the public can also come forward with information about a possible wrongdoing. Our constituency is significantly broadened as a result. Part of our duty is to inform, so that stakeholders understand what we do, why we do it, how we do it, but as well, what we're not doing.

It remains a challenge to ensure that all public servants know about the legislation and the role of my office. Of course, we rely on the support of our colleagues in the public sector, the media and indeed members of this committee and your fellow parliamentarians, to help us ensure that people are aware of our existence and our mandate.

Our annual report is also a key means of reaching out to all public servants and informing them about our role and our approach. I am pleased to have been able to provide to you today copies of the brochure that you now have at hand, that we are distributing widely throughout the public sector and that provides key information about my office and our work.

Let me now say a few words about the second pillar of our mandate: protect. Our act specifically deals with protection on a number of fronts. We have exclusive jurisdiction to handle reprisal complaints; the protection of public servants who come forward with a disclosure or who participate in an investigation is also one of our key responsibilities. Protection is central to our mandate. We must also protect the identity of the discloser who comes forward to us in good faith, and we must protect the information that comes into our hands as a result of our work.

We thus have a number of interests at stake: the interests of those coming forward in good faith and who have faith in the public sector and want to uphold its long tradition of ethical behaviour; the interests of those same persons in being protected against reprisal for coming forward and not being punished for doing the right thing; the interests of the chief executive, on behalf of his or her organization, in wanting to manage effectively and honestly, in knowing about problems as soon as they occur, and in being able to respond to them; the interests of those against whom allegations are brought and whose reputations and careers may be at stake; the interests of an organization in being able to continue to operate when we're called in. Our job is not to shut down an organization when we respond to an allegation, but to ensure that the problem is corrected.

Also at stake is the public interest. We are and will continue to be guided by the public interest in all cases.

These are the essential interests that must be recognized and balanced.

Finally, to prevent is the third pillar of the mandate. Very early in my mandate, with the support of Parliament and eminent jurists, we collectively agreed to interpret my mandate as something broader than mere enforcement. We truly believe that a strong prevention orientation is critical to our success, along with education and outreach. My office will certainly respond fully and seriously to every inquiry, to every allegation of wrongdoing, every complaint of reprisal. We will not hesitate to use the full investigative powers provided by the act. However, that is not to say we'll confine ourselves to two options: investigate or close the file.

An enforcement model is simply not enough for us to achieve our goal of promoting ethical behaviour; that is, creating an environment in which valid concerns can be brought forward and dealt with effectively, and enhancing confidence in our public institutions.

We have a responsibility to identify vulnerabilities. Let me repeat that, where wrongdoing does occur, we will respond as effectively and efficiently as possible within the framework of our legislation.

I'll offer a few words about the annual report, if I may.

You will note that the three guiding principles are still there: inform, protect, prevent. But as well, we've added the very important component of shared responsibility. This year we thought it would be important as well to raise concern about small federal agencies. My office is one such agency, with all the challenges and opportunities. By the same token, the whole issue of capacity to ensure that mistakes are not made is quite central. There is urgent action required to ensure that each of our institutions is equipped to handle its mandate and have the internal capacity to deliver on it.

I also spent some time discussing crown corporations and vulnerabilities around governance. Again, this is a very important instrument to delivery of policy, operational, or specific mandates. The report in that regard discusses five myths and associated misconceptions. I'd be curious to hear your comments and suggestions.

Our third chapter talks about investigation. We highlight four specific cases, each of them quite complex, wherein we describe not only our obligation as we implement the act, but as well, the very important approach of acting as soon as possible to find practical solutions. Our involvement in any case may result in a net gain, a value-added, but we're confident that we do bring that value-added.

We've also devoted a chapter to the fear of coming forward. Why are people afraid? Indeed, that fear is real and complex. Most employees just want the wrongdoing to stop. They want the problem to be fixed as quickly and informally as possible; they do not want a long, formal investigation. But disclosing wrongdoing is a difficult thing to do, even with all the protection offered by the act. My office will continue to be sensitive to this challenge. We've included, in fact, the perspectives of people who've come forward in the past and of those organizations that work with these people. We've begun a consultation process. We value their unique perspective and will pursue the work with those organizations.

The annual report also describes the impact of organizational culture in the decision to come forward. It is crucial to establish a culture in which public servants can raise their concerns openly and with confidence that they will be treated fairly when they do so.

Our chapter on prevention, which, as I mentioned earlier, is at the heart of our mandate, reports on our efforts to reach out to small agencies and crown corporations. It also speaks to two target communities within the public sector: senior leaders, and middle managers. They are the culture carriers of the public sector and are key allies.

The photograph on the annual report was taken at our September 2008 symposium that brought key players together. There were over a hundred participants in addition to those in the photograph.

We also report on our very preliminary steps in benchmarking Canada's disclosure regime against countries with similar systems: the United States, the United Kingdom, Australia and New Zealand.

I'm here as well to talk about my budget plan. We've shared with you a brief document that gives an overview of the budget spent by my office in the fiscal year 2008-09. Our actual spending was $3.6 million. We do believe this amount is adequate to meet our current demands.

My office is still very much in a set-up mode, which makes it difficult to predict how many cases we'll receive and how many staff will be required, but we did build the capacity and the expertise to handle every single case with all of the attention that it deserves.

I have put in place a core team of professionals with our mandate very much at heart. We recognize that there will always be a need to have access to external experts in specific areas, as we have done in the past.

In conclusion, in 2009-2010, I expect to focus mainly on making known the mandate of our office as well as improving our case management system. As our work progresses, we will report to you on the resources required to continue to do our important work.

A five-year independent review of the act is required, and we intend to gather the information necessary to support that review, to guide Parliament, and to ensure that any recommendations that flow from it are fully informed and well supported.

It's an honour to appear before you, Mr. Chair and members of the committee. I welcome any questions you may have.

[The Chair, Liberal, Derek Lee]

Thank you very much for your opening remarks. They'll be very helpful to members.

I should say that our order of reference today does not mention your annual report, but that turns out to be, as you describe it, a fairly significant document. You've used it creatively to inform the public about the mandate of your office. And while in some sense you're a work in progress—in other words, you're still in set-up mode—I'm sure colleagues around the table appreciate that you can still describe yourself as lean and mean and doing the job with just the right amount of taxpayer dollars.

Having said that, I'll turn to the Liberal Party, and Ms. Foote, for eight minutes.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Thank you, Mr. Chair.

Thank you for appearing before us this morning. I really appreciate that you've come here to give us a little bit more insight into the act and what it is you've been tasked with under this legislation.

It's interesting, as I listened to you and read through your document as you were going through it.... I guess this would otherwise be what we've all thought of as whistle-blower legislation and the negative connotation that goes with that type of reference to a whistle-blower. But also there has always been a concern, when you talk about protecting the identity of the person who is making the complaint, as to whether or not there is fairness in that for the individual or whoever the complaint is being levelled against.

How do you handle that? Does a person about whom the complaint is being made not have the right to know the source of the complaint? I'd like your thoughts on that, because we're trying to be fair to everyone, but I would think that would also be a question, that a person or an organization that is being complained about would have the opportunity to question the validity of the complaint.

[Christiane Ouimet]

Thank you very much, Mr. Chair.

These are very valid observations. Perhaps I'll use a preface.

First of all, it is true that whistle-blowing is not used in the legislation, and intentionally so, because it does carry a pejorative connotation. That's why we're talking about disclosure of wrongdoing. I think there is a difference. That's why I spent some time talking about the “various interests of parties” part of the process.

First and foremost, the act talks about protection to the extent possible. Protection should never be at the expense of natural justice and should never be at the expense of the institution itself, which must continue to operate notwithstanding concerns that have been brought forward. The act talks about effectiveness and also the rapidity with which we intervene. We don't want to have long processes that cast doubt on a number of people.

Nonetheless, I think Parliament did want public servants to come forward, to raise concerns. That's why, when I go around the public sector or across Canada, I always make the following comment. Each organization should make sure that it has solid, credible disclosure processes. Supervisors should know about issues that are of concern. There are very basic ways of doing it, including having conversations with dissenting workers, or agreeing to disagree. But you do need to have that culture of saying, “I made a mistake. I'm prepared to raise it, and something is going to happen.”

I would also guide the members, Mr. Chair, to our website, where in the context of our symposium in 2008 we had a very good presentation from one of my counterparts, the Honourable Patrick Ryan from New Brunswick, which talked specifically about what he called qualified protection.

Finally, in the annual report, we do talk about cases where the three disclosers changed their minds. They didn't want to pursue it. Still, we brought the matter to the attention of the chief executive, who took absolutely all measures to address the concerns, whether they were founded or not. I think that's the aim of the legislation.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

This is limited to the public sector. I'm curious about whether or not any thought has been given to anyone external to the public sector who may have an issue or a complaint that they wish to bring forward. Is that something you've considered or thought about?

[Christiane Ouimet]

No. In fact, any member of the public can come forward with respect to a concern about the public sector, as I've described it. Any member of the public is invited to raise concerns about public administration.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

That's interesting.

In your annual report, you talk about small agencies being particularly vulnerable to serious mistakes, essentially due to a lack of internal capacity. You say that urgent action is needed. I'm wondering if you could elaborate on that in terms of the urgent action you're referring to.

[Christiane Ouimet]

In fact, I've had a lot of conversations with newly appointed or not-so-newly-appointed heads of organizations. My small organization has the same reporting responsibility as does a large department. We're just undertaking, with the Office of the Auditor General, a full audit of our activities—that's more than 700 hours of verification—and of course we're an open book. But it has an impact not only on our organization but on our service providers. With a staff of 20, I need to buy my human resources services and my financial expertise elsewhere. Otherwise, it would not be cost-efficient to have my own units.

Similarly, there are what are called micro-organizations—with 500 or fewer—or the small and medium-sized agencies. There's a high rate of turnover of staff. In the annual report, we recommend a number of measures: certainly assistance from the portfolio deputy minister; certainly training and continuing education for people who come from the public sector and who don't know the intricacies and the complexity; and what are called shared services or common services. The Auditor General did mention that in her last report about small agencies. For a small cost, you can regroup those services and have some sort of comparison analysis as well of how issues are handled.

So we have a series of very simple measures and lessons learned that perhaps the central agencies, with the assistance of other agents of Parliament, could put into place.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

I just want to go back to the idea of the public being able to lodge complaints. Is that well known? I know that this is referred to as the Office of the Public Sector Integrity Commissioner. How do you make it known to the public that you do actually take complaints?

[Christiane Ouimet]

It's under section 33 of the Public Servants Disclosure Protection Act. It invites any members of the public to communicate with our office with any concerns.

There's a very specific test, because members of the public are probably not as knowledgeable about the functioning. In fact, the test is slightly lower with respect to the level of information that can be brought forward. I do recognize in the annual report that because of capacity reasons in the setting up our organization, our focus has really been on the core public service as opposed to members of the public, although as part of an anecdote in my first annual report, I did reach out to farmers in my community, in my hometown, to find out if they knew that I existed. Did they understand why I was set up? I have that quote in my first annual report. They didn't know why we existed. It is confusing for the layperson, but maybe we have this office because we need it at this point in time.

We commit to members of this committee to reach out more to members of the public in the coming year to explain to them that Parliament took those issues seriously. We do want Canadians to know that we have been given that mandate and they have the opportunity to raise concerns.

[The Chair, Liberal, Derek Lee]

Mr. Roy, you have eight minutes.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Good morning, Ms. Ouimet, and good morning, gentlemen. Ms. Ouimet, I have a very particular question for you. I am not asking you to comment on the case I am going to mention, but, if I was a public servant these days, I would have great hesitation in condemning practices in the public service that seemed to me to be wrong. Let me explain why.

Daniel Leblanc, a Globe and Mail journalist, had a source inside the public service or the government. Because of that source, he broke the sponsorship scandal story. Today, Mr. Leblanc is in court where people are trying to force him to reveal his source even though freedom of the press is recognized in the Constitution.

If a public servant registers a complaint and discloses information that might be considered confidential, could the court not require you to divulge the name of that source? The objective of the act is also to protect those who expose practices that are deemed to be unacceptable. But, if you find yourself in court, problems can arise and you can perhaps be forced to reveal the name of the person who disclosed those practices on the grounds that the person has revealed confidential information.

The case currently before the judge is extremely important in this regard. If the court forces Mr. Leblanc to reveal his source, not only will the freedom of the press be affected, but your office will also be affected in a very significant way. The legislation that we have at the moment is in danger of becoming practically unworkable because no one will want to disclose anything anymore. I do not want your opinion on the case itself, but I would like to know if you have considered the possibility of that kind of thing happening.

[Christiane Ouimet]

Mr. Chair, we certainly take our role of protecting the identity of people who come to our door very seriously. That obligation does not just apply to our office. I neglected to mention that, as part of the internal processes, each department and deputy head has the same obligation to protect the identity of those who decide to speak out. But, yes, in preparation for my appearance today, I asked myself and I asked my deputy commissioner, who is one of Canada's experts in administrative law, about the extent to which I can divulge details published in my annual report and still maintain the balance of night toward justice.

At the end of the day, I feel that all members of the committee and all members of Parliament are interested in truth, legitimacy and the public interest. This will be a very delicate balance. The courts will have the last word on what the ideal balance is. In the meantime, I can assure you that we will do everything possible. Our previous practices have shown that disclosers were so afraid of being identified that they did not wish to take the complaint process any further. So, we withheld the details of the disclosure. We arrived at complete solutions with organizations without having to provide evidence. In cases like that, however, we cannot always check everyone's credibility. It all comes at a cost. So we have to maintain a balance. My commitment today is to provide the best protection than I can.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

My question goes further than that. To what extent can you assure people who make disclosures to you that a court will never force you to pass on their information? Your office has not yet been prosecuted, but if it were, do we have a guarantee that you would refuse to reveal information even if the court ordered you to? It could get to that point. This is the whole question of the confidentiality of the information that is provided to you.

[Christiane Ouimet]

My obligation will be to examine the facts carefully and to apply the legislation, the tools that Parliament has given us. The final decision will lie with the Federal Court. There are practical tools that can be used. For example, I would not hesitate to ask that proceedings be conducted in camera and that documents be sealed. I worked in the Solicitor General's office for five years and I know that any area of security has its own particular measures.

Can we provide you with a cast iron guarantee? Unfortunately, Mr. Chair, that would be difficult, and I would not like to provide you with incorrect information.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Of course I understand that you cannot give me a cast iron guarantee. In other places in the world with similar legislation, have cases gone to court? What has happened there?

[Christiane Ouimet]

Yes, we have looked at the four countries that interest us most: New Zealand, Australia, the United States and Great Britain. I spent a few days in Washington looking at the system there. Ours is the most comprehensive system: disclosure, reprisals and investigative power are all together. In some countries, they have the power to accept reprisal complaints, but investigations are conducted by a third party or a separate organization.

The United States is not alone in having systems where the emphasis is placed squarely on matters of nuclear safety and on security. Often, disclosers do not hesitate to reveal their identity. Several have even made the headlines. So it is very different. Our mandate is very recent; at this stage, in some cases, we have asked the discloser for permission to communicate directly with the senior officer. The senior officer is the person responsible for the implementation of disclosure processes in each department. In some cases, we obtained that permission. So we get creative, but always so that the public interest is served.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

I have a question about the complaints that you have received. If I understand correctly, not one single complaint is currently being dealt with. In your report, you said that “22 were closed on the basis that the subject matter could be better dealt with under another act of Parliament.“ Were those really complaints or disclosures of wrongdoing? What kinds of complaints have you rejected because they could be better dealt with under another act of Parliament. What other acts of Parliament deal with disclosure of wrongdoing?

[Christiane Ouimet]

First of all, let me go over the figures from the last financial year in broad terms. There were 151 requests for general information. If we take away the files where the discloser realizes that there is after all another way of going about it—because, ultimately, we want the best act, the best procedure for dealing with the request and because private interests are often involved—there are 76 allegations of wrongdoing, or disclosures, and 23 reprisal complaints. When all the accounting was done at the end of the financial year, there were 15 active disclosure files and one under investigation. After the preliminary review, there are two files that we deal with in more detail in our annual report.

I mentioned 23 reprisal cases. Of those, 21 were dealt with under the act and one other file, quite a significant one that had been ongoing for several years, was closed. There is one other that is briefly mentioned in the annual report. When we say that we have referred a case to be dealt with under other existing acts, we mean, for example, to the office of the Auditor General, to the Public Service Staffing Tribunal, the Human Rights Commission, and the list goes on. There again, even if we ultimately have no jurisdiction in dealing with a file—and I would like to tell you that, for 76 disclosure cases and 23 reprisal cases, a lot of time and attention is required—we often have to talk with the discloser, first to provide him with some guidance. We also have to ask what his objective is, what he expects to get out of the complaint. This also sheds a lot of light and, once more, gets us involved in all the cases to channel them. Sometimes the discloser realizes that he is knocking on the wrong door. Sometimes, too, people are very emotional; we are their last resort. So, for each file, we look at all the relevant parts of the legislation, and my office cannot get involved if there is a process already underway.

[The Chair, Liberal, Derek Lee]

Thank you. Now we move to Mr. Gourde, who has eight minutes.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Thank you very much, Mr. Chair.

Welcome, Ms. Ouimet. I am pleased to have you at our committee as a witness.

You mentioned that your mandate is still new, but I think it is a very good one that will provide you with excellent insight into the way of developing all these strategies. You drew inspiration from other countries. Can you also tell us that other countries are drawing inspiration from us?

[Christiane Ouimet]

Thank you very much for the question.

Since I took the position, we have, in fact, looked at similar situations. We recruited one of the country's experts, Professor Ken Kernahan, who had already been conducting research internationally, to help us, not only with methods of comparison, but also to find out about case law and procedures elsewhere. There is no point in reinventing the wheel. Following the recommendation of experts in the area, we looked at four countries. The Canadian model is unique. I use that word accepting that some will say that it is not the right one. But I think our model brings together best practices in a number of respects. But it is a very complex act, with a lot of provisions to take into account.

I am going to be meeting my counterparts over the coming months and into next year. We are also going to invite some to Canada and we intend, always with Parliament in mind, to hold a symposium in 2010 to bring experts together. I have already met my Canadian counterparts, from four provinces with a similar program, and we are studying success indicators and implementation. As I indicated previously, our structure is one of the only ones in the world where disclosure, reprisals, powers of investigation, exclusions and inclusions are brought together. That all adds to the complexity. Some areas of security are excluded, and, once again, we will have public interest tests developed as a result of the case law.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

As we know, there is going to be a lot of renewal in the public service in the next five or six years. You are going to have to inform the new employees about the entire process.

Could that whole process lead some Canadians to be afraid to join the public service? New employees can unintentionally make mistakes as they learn. Could that be considered voluntary or involuntary? How are you going to demystify the process so that people can defend themselves?

[Christiane Ouimet]

That is an excellent question, Mr. Chair.

We are working together with the Canada School of Public Service, which is going to train that new generation for all departments.

Very early in my mandate, I decided that I would focus on the middle managers, because they are the key group that is going to bring the new generation in. We are going to train them in the basic areas: staffing, financial administration. I have spoken to several hundred managers. I wrote them a mandate letter; it is posted on my website and I hope that it gets them engaged. It also appears in part in my annual report. In it, I talk about the importance of making sure that leaders dealing with the public, with service delivery, are well trained, precisely because they are part of today's new generation and they will be part of tomorrow's. I talk about mentoring, and about integrity and ethics, but as everyday values.

If parliamentarians have other suggestions, I would be happy to hear them. Meanwhile, the letter is on the website and, judging from the number of people consulting it, it is raising a good deal of interest. There is still a lot to be done, and we are going to continue along the same lines.