Thank you, Mr. Chair.
I would like to thank the committee for inviting me to appear before you this morning. Joining me today are France Duquette, Deputy Commissioner, and Brian Radford, General Counsel.
I'm delighted, Mr. Chair, to be here to discuss our experience in administering the Public Servants Disclosure Protection Act as it applies to me and to my office, and to have the opportunity to present you with concrete proposals that I firmly believe will contribute to a stronger and more responsive federal public sector whistle-blowing regime.
The proposed amendments are based on our 10 years of experience as the external option for whistle-blowers in dealing with more than 750 disclosures 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.
Our proposals are first intended to facilitate and encourage the making of disclosures of wrongdoing, including clarifying and emphasizing confidentiality. Second, they are intended to remove practical barriers from my office to be able to carry out its investigations. Finally, and of essential importance, they are intended to address the unreasonably heavy burden placed on the shoulders of reprisal complainants and to strengthen the protection offered to them.
Before discussing the details of the proposals, I'd like to take a few minutes to discuss the context in which we conduct our work and the context in which these proposals were developed.
In the words of Madam Justice Elliott of the Federal Court in a recent decision, the whistle-blowing regime established under the act “addresses wrongs of an order of magnitude that could shake public confidence if not reported and corrected”, and that if proven involve “a serious threat to the integrity of the public service.”
We were not established to address every problem or issue that might arise across the vast 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 represented here by Madame Boyer and Monsieur Choquette this morning.
In carrying out my duties under the act, I should emphasize that I am not an advocate for any party. Rather, I am a neutral decision-maker who is required to be objective and impartial and to respect all parties' rights to procedural fairness and natural justice.
I'm confident, Mr. Chair, that you and committee members would agree with me that there cannot be an effective whistle-blowing system without a culture shift so that speaking out about potential wrongdoing is an accepted part of public sector culture and can be responded to and supported in a climate free from reprisal and 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 review, to move us closer to our goal.
With this in mind, I have to stress that a small office of 30 people with an annual budget of about $4.8 million can't do this alone. A change in thinking so that whistle-blowing is normalized takes more than one piece of legislation and more than one office. It requires an ongoing collective commitment. I am an active and proud part of that collective commitment, but we must be realistic in accepting, first, that the fear of reprisal exists, and second, that a larger shift has to occur before that fear can be diminished, if not eliminated.
This fear is very real. Over the years my office has made efforts within its capacity to collect information on this issue and to try to identify ways to diminish the fear. Two public opinion research projects were commissioned by my office, the most recent one being in 2015, and they 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 whistle-blowing. 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'd like to make is that the field of whistle-blowing 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 whistle-blowing legislation that contains many similarities to ours. What we know as well is that our federal model has very distinct features, such as my independent office and a dedicated tribunal to hear cases of reprisal.
Even among countries with similar legal and governance systems, there are differences in whistle-blowing regimes. While there are core principles that are generally adhered to in any regime, one of the key challenges is designing a whistle-blowing 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, very importantly, the existence of other recourse mechanisms, as my office was not created to replace any other body.
I believe this must be kept in mind as we take a critical look at our own system. The act creates a whistle-blowing regime designed specifically for the Canadian federal public sector. I hope the lens through which we examine the legislation in this review process ensures 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.
In carrying out my duties as commissioner since my appointment in 2015, I have made every effort 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've done this to ensure our discussions are focused on those issues that require, in my view, formal legislative amendment in order to support our effective work. I preface the discussion by saying that the 16 specific recommendations you now have before you are those that I believe require the formality of legislative amendment to properly achieve the desired outcome of the act.
Turning to those recommendations, I'm only going to highlight, given my limited time, one in each of the broad categories I mentioned at the outset of my remarks.
With specific request to reprisals, our goal is to lessen the considerable burden facing complainants, in addition to recommending very important and, I think, essential 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, 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 the previous witness's support of the same recommendation, and I also believe this represents best international practice.
I'm also proposing recommendations to encourage and support confidence and trust in the regime. A key recommendation in this regard is the removal of the good faith requirement for a whistle-blower or reprisal complainant. This may initially strike committee members as counterintuitive, but in reality, this requirement incorrectly focuses attention on the motivation of the individual coming forward rather than the actions being reported. The test should be whether the person believes the information is true, not the motivation to come forward. In my written submissions, as I emphatically state, motivation is not relevant. What is relevant is whether a wrongdoing or reprisal took place.
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'd like to come back to something I believe was said before this committee last week that is of serious concern to me and my office. As I understand, it was stated that the first thing we do when receiving a disclosure is to inform the deputy head and to communicate the name of the discloser. If there's one thing we're extremely careful about protecting, it is the identity of the whistle-blower. I hope this is not what was intended to have been said. I will happily respond to any questions about our processes in that regard.
Finally, another theme of our recommendations is addressing barriers to our ability to do our investigations. I draw your attention 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 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.
That concludes my presentation.
I'll now be happy to answer any questions you might and to review any of the 16 proposals that I am very proud and confident to be putting before you this morning, Mr. Chair.