Government Operations Committee on Feb. 14th, 2017

[Erin Weir, NDP, Regina—Lewvan, SK]

It absolutely makes sense to be consulting with public servants and the unions that represent them, but how about these outside groups, such as FAIR or Democracy Watch? It seems to me that in the past an attempt was made to include some of them on a committee, and that was ended pretty quickly. I wonder why that is. Might it be worth trying to again reach out to those organizations and include them in the process?

[Joe Friday]

Mr. Chair, our office is always interested in getting the broadest possible input from the broadest possible array of informed voices.

[The Chair, Conservative, Tom Lukiwski]

I'll have to stop you there. Thank you.

We'll go to Madam Shanahan, please, for seven minutes.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Chair.

Thank you, witnesses, for being here this morning.

The numbers are still very much a concern to me, the relatively few numbers of disclosures that are made in the first place. That's the first thing. That's the funnel we need to be working with. One would think, with a public service of 400,000 employees, that there would be somewhat more than the tens of cases—barely a hundred or so cases—we're seeing.

We heard testimony from other witnesses that of course not every disclosure enters into the criteria of whistle-blowing, but I'll take it from the position of a new employee, of somebody who's concerned about their job. They see something that they don't understand and want to talk to somebody about it, and the first thing they're greeted with—because apparently these are the kinds of tools that are given to the employees at their orientation—are five questions that you should ask yourself before you even say anything. As for some of the things the employees are told right away, I know we're trying to be helpful, but one thing they're told is to be concerned about what effect this would have on their families and their friends.

What's in it for the employee to even come forward? Nothing but trouble. Can you please comment on that?

Then I'd like to hear from you about how the changes that you would like to see would in fact encourage more people to come forward. Maybe we can take away the word “whistle-blowing” and just come forward with their concerns, because everyone benefits in that case.

[Joe Friday]

Mr. Chair, first I would like to point out that the pamphlet you have, the five questions, is not one that we distribute anymore. That negative message it was sending represented a way of thinking some years ago.

That is not distributed. That is not published anymore. We have a new pamphlet, and the new pamphlet is actually included in your binder today.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Is this the new pamphlet here?

[Joe Friday]

Those are the new five questions.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Okay. All right. The other one was a decision-making tool that was a link to the website.

[Joe Friday]

The first five questions, and I agree with you, had almost a dissuasive tone or a discouraging tone. I think the thinking behind that was that we wanted people to understand the importance of whistle-blowing, and the fact is, things have happened. Reprisal is not something that we can pretend doesn't exist in the system, but our new five questions, I think, put a much more positive spin on it.

With respect to the numbers specifically, as I said in my opening remarks, Mr. Chair, we have to take into account the fact that there's a very crowded landscape of recourse mechanisms in the federal public sector.

I don't replace anybody. I'm not an appeal body from anybody. It's not uncommon for someone to come to my office to say, “I was just at the Human Rights Commission. I don't like the decision. Can you please review it?” I was not created as an appeal court for those bodies.

I also have great discretion under the act. I believe a significant portion of the cases that I don't act on are those that I feel can be better dealt with by another body. It's not that those situations go unattended.

For example, I'll use the human rights situation. If someone comes to my office and says that they've been discriminated against, contrary to the charter of rights, would that be a wrongdoing? Absolutely, if it's proven to be true. Does my office need to be the office that says that? Maybe not. I respect the expertise that other tribunals and other bodies have, so in a typical case, if there is such a thing in my world, we would likely say to that person, “We think that the Human Rights Commission and the tribunal, with its expertise and its specific remedies and its specific processes, is the appropriate place for you to take your—”

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

If I may, Mr. Friday, I'll ask you to give us a flavour of the comfort level that people have in coming to your office. I say that knowing that you have recommended that in fact the Auditor General's office be endowed with some powers, from my understanding here, when investigating your office, that your office has not completed.

Again, it becomes an additional step, but of course in the trust landscape, the Auditor General's office has a tremendous amount of trust from people. Would it be appropriate to encourage people—and I'm just putting that out there—to approach the Auditor General's office in the first place?

[Joe Friday]

The proposal with respect to the Auditor General is to expand the power they have to deal with a reprisal. They can currently investigate our office under the heading of wrongdoing. We think it's fair that this should be expanded to reprisal, so it's to put a broader or a more complete set of powers into the Auditor General's hands vis-à-vis their oversight of my office. I think the investigator's office is not free from investigation itself, so we would be expanding the power given to the Auditor General.

With respect to the particular legislative amendments to increase confidence—for example, right now you can make an internal disclosure to a designated senior officer or to your manager—my first proposal is that you be able to make a disclosure internally all the way up the line, up to and including the deputy minister. It's to open those gates.

We want to have, as I mentioned in my opening remarks, access to outside information. If, for example, a public servant is accused of running a business on the side or using it in an inappropriate way, it would be important for me to have the ability to look at business records outside the public sector in order to do that. I think that would increase confidence.

There is one proposal that I feel very strongly about—not most strongly, because I think the reverse onus, the interim remedies, and the payment of legal fees are essential—but the entire idea that you have to prove that you came forward to my office in good faith makes me crazy. You should not have to do that. What matters is that you have reasonable belief in the truth of what you're coming forward with.

[The Chair, Conservative, Tom Lukiwski]

We'll have to stop there, Mr. Friday. Perhaps you could expand upon that in our next round of questions, which will be five minutes in duration.

Mr. Clarke, you have the floor, and you have five minutes.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Good morning to you all. Thank you for joining us this morning.

Mr. Friday, I am going to continue with you.

I have with me the annual report on the Public Servants Disclosure Protection Act, prepared by the Treasury Board. If I am not mistaken, our first witnesses, two weeks ago, were officials from the Treasury Board. I have the statistics that you provided to us. I am interested to see the total number of disclosures analyzed from 2010 to 2016. We can see that there are two routes to consider.

[Joe Friday]

There is the internal route and the external route. They are linked, but they are completely separate.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

So that is what we are going to keep talking about because that is what interests me.

Internally, the total number of disclosures analyzed over five years is around 2,000. The total number of disclosures received and analyzed by your office since 2007 is 774. In your view, what explains the fact that, apparently, public servants are using the internal route more than your office?

[Joe Friday]

The Treasury Board statistics deal with allegations, not with disclosures. In our office, we analyze disclosures. Each disclosure contains a number of allegations. I feel that it's almost impossible to compare the two because the Treasury Board uses a different method.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Nevertheless, if we compare things according to the same standards, is there a way to find out if you receive more cases than the internal route? If you take your own data, do you have to handle more cases? Do people have to deal with more of them?

[Joe Friday]

We received 1,700 allegations.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That is much the same. Thank you for that clarification.

Should there be an internal process? Why could you not be the only one looking after all complaints, all disclosures, all allegations, and so on?

For example, last week, we heard comments from an official who deals with disclosures in the Department of Health. I assume he does a good job, but do we really need a body to protect whistleblowers in every department? Could you not be the only one who looks after it all?

[Joe Friday]

One of the strengths of the Canadian system is that those options exist. The choice lies with the whistleblowers. It depends on each person's level of trust. The goal is to make sure that each potential whistleblower has all the information needed to make a completely informed decision. That's a very important aspect of our system.

The former system required people to go through the internal option before they could use the external option.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That is interesting. So you are saying that, beforehand, people had first of all to go through the internal process. Now they are allowed a choice.

[Joe Friday]

The whistleblower can choose the internal route or the external route.

[The Chair, Conservative, Tom Lukiwski]

Thank you.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

[The Chair, Conservative, Tom Lukiwski]

Mr. Whalen, you have five minutes, please.