Government Operations Committee on Feb. 7th, 2017

[The Chair, Conservative, Tom Lukiwski]

Colleagues, thank you. I thank our witnesses for being here.

There's just a little bit of housekeeping before we introduce our witnesses and proceed with the meeting. I will be taking approximately 15 minutes at the end of the meeting for committee business to briefly discuss future witnesses appearing before the committee on this act. I think we should be able to dispose of that in about 15 minutes.

With that, I would like to welcome Mr. Trottier and Madam Stevens, who are with us today. This is the 68th meeting of the Standing Committee on Government Operations and Estimates, and we are dealing with a study of the Public Servants Disclosure Protection Act.

Mr. Trottier, Madam Stevens, thank you for being here.

Mr. Trottier, I understand you have a brief opening statement.

[Carl Trottier, Assistant Deputy Minister, Governance, Planning and Policy Sector, Treasury Board Secretariat]

I do. Thank you very much, Mr. Chairman.

Members of the committee, thank you for the invitation to appear to discuss the Public Servants Disclosure Protection Act, which came into force on April 15, 2007, replacing the Treasury Board's Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace.

The intent of the act is to promote an ethical climate in the public sector, which in turn maintains and enhances public confidence in the integrity of public servants and institutions. By providing public servants with a safe way to speak up when they see something wrong, the act leads to enhanced workplace well-being in the public sector.

The public sector is held to the highest standards of accountability by Canadians, and we take pride in ensuring sound stewardship of the public service assets and excellence in the delivery of programs and services to our citizens.

The Public Servants Disclosure Protection Act is an important part of our integrity framework. Of particular importance, the act sets out measures to promote an ethical climate. It does this through its values and ethics code for the public sector, as well as organizational codes of conduct to articulate our shared values and expected behaviour in the public sector.

The act encourages employees in the public sector to come forward if they have reasons to believe serious wrongdoing may have taken place, and when they do, it provides them protection from reprisals so they can feel safe in coming forward.

The act established multiple avenues to disclose wrongdoing, internal to departments and external.

The Public Sector Integrity Commissioner is an independent agent of Parliament who is responsible for investigating the disclosures of wrongdoing that are made to his office and all complaints of reprisal.

The act also established the Public Servants Disclosure Protection Tribunal to address cases of reprisal and provide either remedial or disciplinary measures if reprisal is found.

Specifically, the act allows employees to make disclosures to their supervisors, to the senior officer of disclosure designated for their organization, or to the Public Sector Integrity Commissioner. It also allows for disclosures to be made to the Auditor General when they concern the Office of the Public Sector Integrity Commissioner itself. In fact, the act allows public servants to provide the Public Sector Integrity Commissioner with information about possible wrongdoing in the public sector.

The act also provides reprisal protection for public servants who disclose information in the course of parliamentary proceedings or in the course of a procedure established under another act of Parliament, or when lawfully required to do so. This means that the act's protection against reprisals serves as a support to many government mechanisms.

Through these provisions, the Public Servants Disclosure Protection Act enhances the ability of organizations to identify and resolve incidents of wrongdoing, while supporting employees who disclose wrongdoing and protecting them from reprisal.

Those are the broad strokes of the act. Now let us discuss some of the more specific areas of the act, beginning with who the act covers.

The act applies to all employees in federal departments and agencies, most crown corporations, and the RCMP. For security reasons, it does not include the Canadian Forces, the Canadian Security Intelligence Service, and the Communications Security Establishment, each of which were required to establish similar regimes for the disclosure of wrongdoing, including the protection of persons who disclose wrongdoing.

The act also provides protection for people outside the public sector, such as external contractors, when they provide information about wrongdoing in or related to the federal public sector.

Let me turn to the matter of what constitutes wrongdoing under the Public Servants Disclosure Protection Act. It includes the violation of any act of Parliament or act of the legislatures of Canada's provinces and territories, which includes violating any regulations made under these acts; the misuse of public funds or public assets; gross mismanagement; doing something that creates or knowingly fails to prevent a substantial or specific danger to health, safety, or life of persons or to the environment; the serious breach of any code of conduct that applies to the public sector; and knowingly directing or counselling a person to commit wrongdoing as defined in the act.

Wrongdoing is not a disagreement with legitimate instructions received in the course of employment or criticism of political decisions.

The act provides employees with a choice of three secure and confidential channels for making a disclosure.

Within their organization, employees may make a disclosure to their immediate supervisor.

They can also speak to their organization's designated senior officer for disclosure. The senior officer for disclosure's role includes providing guidance to employees wishing to make a disclosure, managing the investigation of disclosures, and reporting the results of the investigations to their chief executives.

Finally, employees can go to the Public Sector Integrity Commissioner.

For internal disclosures, the act requires the chief executive to provide public access to information describing any wrongdoing that is found and any corrective action that has been taken. The act also requires the Public Sector Integrity Commissioner to report to Parliament within 60 days of finding a wrongdoing.

A common concern of those considering disclosing wrongdoing is the fear of acts of reprisal. To address this, the Public Servants Disclosure Protection Act requires disclosures of wrongdoing be treated with an appropriate degree of confidentiality.

Organizations must protect any information they collect about disclosures, including the identities of those making disclosures and of other parties involved, subject to other acts of Parliament and the principles of natural justice and procedural fairness. In this way, the act provides protection to those who disclose wrongdoing, balanced with a fair and objective process for those against whom allegations are made.

In addition, if those who disclose wrongdoers are the subject of reprisal, they can complain to the Public Sector Integrity Commissioner within 60 days of the realization of the reprisal that was taken against them. If the complaint is founded, doing so may lead to corrective action being ordered by the Public Servants Disclosure Protection Tribunal, such as compensation or disciplinary measures against the guilty parties.

To be clear, acts of reprisal include any disciplinary measures, demotion, termination of employment, and any other action or threat that adversely affects employment or working conditions.

Finally, the act requires that the Public Sector Integrity Commissioner prepare an annual report to Parliament on the activities of his office. The act also requires that the chief human resources officer prepare an annual report for the President of the Treasury Board to table in Parliament.

The report of the chief human resources officer must provide information on activities related to the disclosures made in public sector organizations that are subject to the act.

Additionally, the Office of the Chief Human Resources Officer supports public sector organizations in their administration of the act through learning events, meetings, and ongoing guidance, as well as by making tools and information available on our website.

We believe in promoting a positive and respectful public sector culture that is grounded in values and ethics. We believe that an effective disclosure regime is beneficial to the organization and to the workforce, and we believe that the Public Servants Disclosure Protection Act is an important part of our integrity framework.

With that, I welcome all of your questions.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Trottier.

We'll start with a round of seven-minute questions now.

Monsieur Drouin, I have you up first.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Thank you, Mr. Chair.

Thanks to the witnesses for appearing today. I really appreciate it.

I would like to understand. Can you walk me through the procedure an employee might have to go through when filing something through the Public Servants Disclosure Protection Act? What is the exact procedure? If I find that somebody has committed something, what do I have to do?

[Carl Trottier]

First of all, I have already mentioned that there are three areas in which the wrongdoing can be disclosed. They are the supervisor, the senior officer, or the commissioner's office. This can be done either in writing or in person. I'll turn to Mary Anne soon for the finer details of your question, because you're asking about the exact procedure. At that point, a review of the submission is done. An investigation is done to verify whether there was wrongdoing. Then there is confirmation as to whether wrongdoing was done.

I'll turn to Mary Anne for the exact specifics of your question, if that was in fact your question.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

I'm also interested in understanding how you protect the employee in that.

As the saying goes, Ottawa is a small town. If there is a specific wrongdoing in a specific department that has to do with a specific issue, I'm curious to find out how the act really protects the employee and provides confidence to the employee that—

[Carl Trottier]

Yes, and that is the main concern.

First and foremost, we don't have any data that says there are issues with protection of the information.

The second thing is that the small organizations, where it would be easy for someone's identity to be found, are exempt from being covered by the creation of senior officers and the creation of a process internally, because it's too delicate, so there is a certain protection that exists at that level.

As well, they're covered by the Privacy Act, which ensures that the information is not to be divulged in any way, shape, or form. That is one of the main tenets of the act, that the information is not to be shared.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Okay.

I'm looking at your annual report and I'm trying to understand it. What would you qualify as the difference between wrongdoing and corrective measures in departments? Help me understand the numbers. You have general inquiries at 198 and, of that, you found seven wrongdoings and you've corrected 31 measures.

[Carl Trottier]

Just to be clear, these are as found by the PSI Commissioner.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

They're in the appendix.

[Carl Trottier]

Oh, I'm sorry, these are the internal reviews of departments.

May I ask you to clarify your question as to what you're...?

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

There have been 198 general inquiries, but of that only 31 corrective measures.

It just leads me to believe—

[Carl Trottier]

In some cases, they're unfounded. They look at them and ask whether they are founded. Does this meet the definition of wrongdoing in any shape or form? In many instances, it doesn't.

In other instances, what often happens is that it's sent, but in reality it should have been sent through another means, another grievance process that currently exists. You have to understand, as you already know, that this act catches only what isn't caught by other—

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Yes.

[Carl Trottier]

So a lot of what comes here is then redirected to other means.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

What does your office do to provide the proper information for employees to understand that? It seems high that for 198, only 19% have provided corrective measures on that wrongdoing.

It leads me to believe that people are filing complaints but they're unfounded, so either the employee does not know how the act works.... Can you help me to understand how you provide that information to employees?

[Mary Anne Stevens, Senior Director, Workplace Policies, Programs, Engagement and Ethics, Governance, Planning and Policy Sector, Treasury Board Secretariat]

Certainly, but first could I clarify some of the data for you?

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Sure.

[Mary Anne Stevens]

The general inquiries aren't disclosures; they're inquiries. An individual comes and says, “I think I might want to make a disclosure. Tell me about the process.” That's an inquiry, as opposed to coming in and saying, “I think there is something wrong happening over here”, which would be a disclosure.

When you're looking at the number of inquiries, you have 198, but the number of disclosures was 281.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Which would bring the percentage even lower.

[Mary Anne Stevens]

Correct.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Okay.

[Mary Anne Stevens]

You can have corrective measures without necessarily having a finding of wrongdoing.

In situations where, because of the disclosure, the department looks at whatever the process is and determines there is something they can do so that the problem doesn't happen again, that would be a corrective measure.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Since the act was created, have you seen a jump in reported disclosures, or is it steady year over year?

[Mary Anne Stevens]

Well, you have all of the data there since the act came into force, and—