Government Operations Committee on Feb. 14th, 2017

[Joe Friday]

It would simply be the private or confidential nature of whistle-blowing.

I think it's important to remember that we are a neutral, investigative, independent agent of Parliament; we're not an advocacy group. As I said, we don't represent a whistle-blower. As I often say, I don't advocate on behalf of a whistle-blower; I advocate on behalf of the act of whistle-blowing. We have to be careful in recognizing and respecting how our office has been created as an investigative, neutral body, not representing one side or the other.

[The Chair, Conservative, Tom Lukiwski]

Unfortunately, Mr. Weir, we're out of time.

Now we'll start again with a seven-minute round.

Mr. Drouin, the floor is yours for seven minutes.

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

Thank you, Mr. Chair.

Welcome back, Mr. Friday, to our committee.

I want to let you expand a bit on what Mr. Peterson was talking about and let you finish. I also want to touch on culture and I want to touch also on two recommendations that you put into your statement.

Do you have any more thoughts about what Mr. Peterson was saying before he got cut off?

[Joe Friday]

I don't remember. It's now gone.

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

That's okay.

You mentioned resources before. I was just looking at budgets over the past four or five years, and it seems that the budget for the office has sort of gone down. Was your office subject to the deficit reduction action plan?

[Joe Friday]

We contributed on a voluntary basis to the deficit reduction plan.

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

Do you feel that has impeded the ability of your office to carry out investigations, or were you able to cut costs in the back office?

[Joe Friday]

At that time, we were able to do that. A constant focus on our part is cutting back-office expenses and trying to plough as much of our budget as we can into our operational focus.

For example, when Madam Duquette was appointed deputy commissioner, we eliminated a previous executive position that she had occupied so that we could have that money to put into operations. Operations remain the focus of our budget.

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

Okay. Thank you for that.

Last week we heard from witnesses that the first thing you do when you carry out an investigation is to go to the deputy head . You've sort of touched on that in your statement. Can you elaborate on the process when you investigate, and how you ensure the protection of the identity of the whistle-blower?

[Joe Friday]

Our process is actually a two-step process. When someone makes a disclosure to our office, it immediately goes to a case analyst. That case analyst deals only and directly with the whistle-blower, no one else, to get as much information as they can about the nature of the allegations. They do an analysis that may include research on applicable policies and laws. Then they make a recommendation to me about whether to investigate or not. We give ourselves 90 days to do that.

During that period of time, no one knows that the disclosure has been made. No one knows who the whistle-blower is except us. We don't communicate anything to anybody else.

If and when we decide that we are going to investigate, then the notice provisions of our act kick in, and we are required under the act to give notice of an investigation to the chief executive. We have to give notice if we're going to show up and start taking away boxes of files, for example.

We give notice that we are investigating a disclosure, and we are required under the act to give the deputy minister or the chief executive the substance of the allegations. We do not name the discloser at that time in that notice. We have given at tab 7 a sample notice letter of an investigation. The reason we give the substance of the allegation is that a fundamental component of natural justice and procedural fairness is to know the case against you.

The discloser is not identified. We then investigate. We can go all the way to a case report before Parliament, and the wrongdoer or the wrongdoing organization would not necessarily.... It's possible to guess, of course, based on facts in a case, and I recognize that the discloser may be someone.... It's not uncommon during an investigation for a potential wrongdoer to speculate as to who the discloser might be. We would never give that information in the course of an investigation.

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

You don't need to make a request under the Access to Information Act. Once you've sent out the notice, you can have access to all the information you require.

[Joe Friday]

Yes. Every chief executive is required to give us access to premises, information, and employees. When we ask to speak to someone or ask to have information, it's a legal obligation to comply. I can issue a subpoena if I need to.

We have had an extremely high level of co-operation throughout the history of our investigative processes. Sometimes people need a friendly reminder that they have an obligation. When they realize that, they tend to comply very quickly.

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

One of the last recommendations you made was to allow your office to obtain information outside of the public sector. In your experience, have you had many cases where outside information was available, but because of the act, you couldn't access that information?

[Joe Friday]

I wouldn't say that we've had many, but when we have encountered that hurdle, it has certainly interfered with our ability to complete an investigation in the way we would have liked to complete it. I don't know if I could say that it has prevented us from making a finding of wrongdoing, but it has certainly slowed things down and forced us to try to find information in the hands of other people. I will say that despite the fact that....

We've interpreted our act to allow us to at least ask for the information if it is in the hands of someone else. What I want is the ability to do that without having to ask someone outside the public sector, “Gee, do you mind giving that to me?” I would rather be able to say, “I want that information because I need that information, and the reason I need it is to complete an investigation.”

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

Okay.

[The Chair, Conservative, Tom Lukiwski]

You have less than 30 seconds.

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

Do you feel that using a third party could potentially better protect the employee or department that is subject to an investigation?

I'll just give you a quick example. If you're investigating a particular department where the whistle-blower, the employee, finds himself or herself, they will be in a specific department, a specific branch, and if I were the manager, it would be fairly easy to identify who that person could be. However, using a third party, perhaps using access to information, could potentially hide better the identity of the employee.

Do you feel that this could be useful?

[The Chair, Conservative, Tom Lukiwski]

Mr. Drouin, I should have been more explicit. When I said you had 30 seconds, that was for both the question and the answer.

[Voices]

Oh, oh!

[The Chair, Conservative, Tom Lukiwski]

Unfortunately, we're out of time. We're going to have to go to Mr. McCauley for seven minutes, please.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Friday, you can answer Mr. Drouin's question quickly, if you don't mind. I wouldn't mind hearing it.

[Joe Friday]

I don't see a particular benefit in using a third party for the purposes of protecting confidentiality. I may not fully understand the question, but I'd be happy to come back to it if there is time.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks, Mr. Friday.

When you give notice of an investigation, you send a letter. What timelines are you giving? The reason I ask, cynic at heart, is that we've seen in other governments, provincially.... We saw here in Ontario that the premier's office wiped their computers clean of emails. I think it's a natural human instinct to go into protection mode. I don't have faith at all that it would be “Look, I'm being investigated. Here's my Internet browser history.”

Do you not worry that roadblocks are being thrown up to your investigations or protections?

[Joe Friday]

I think it's certainly possible that people could and would do what they can to avoid producing—

[Kelly McCauley, Conservative, Edmonton West, AB]

I'm not a lawyer, but you mentioned natural justice: a person has the right to know. I would think that a lot of times it would be a department or their acts being investigated, and maybe not a person. I don't think such natural justice would apply to a department. We saw in the Lac-Mégantic disaster that Transport Canada wilfully, systematically overlooked safety procedures. That wasn't Bill Smith doing it; it was the whole department. It would seem counterintuitive to protect natural justice—