Merci, monsieur le président.
Good morning, and thank you for inviting PSAC to talk with you about the PSDPA.
With me is Patricia Harewood. She is the legal officer with the collective bargaining branch at PSAC.
The act should provide guidance, support, and protection for public sector workers who wish to speak out against wrongdoing. It's been failing them from the start.
It's undisputed that workers are reluctant to come forward. When they do, they often experience great sacrifice in their personal and work lives. It sends a powerful message to others to remain silent. Perceived freedom to speak up without fear of reprisal is described as a basic need in the Canadian Standards Association's 2016 publication on whistle-blowing systems and best practices. CSA concluded:
There is a strong relationship between the creation of a psychologically safe and healthy workplace and the creation of a whistleblowing system...given that both involve establishing and reinforcing a culture that gives employees “voice”, as well as confidence that concerns will be handled in a just manner.
Overall, a speak-up culture is not being applied in Canada, nor is there an independent process or effective protections for whistle-blowers.
The act has been extensively criticized for setting too many conditions on whistle-blowers and for protecting wrongdoers. It reins in whistle-blowers by restricting them to making disclosures to internal mechanisms; they can only disclose a wrongdoing directly to the Public Sector Integrity Commissioner, PSIC, in limited circumstances. A disclosure to the commissioner can be made if the individual has reasonable grounds to believe that it would not be appropriate to disclose internally. That effectively shuts many cases down.
The act also does not ensure the right to disclose all illegality and misconduct. The definition of “wrongdoing” selectively omits large areas, such as Treasury Board policies, breaches of which spawned the Gomery inquiry. Public disclosures are only permitted when there is not sufficient time to make a protected disclosure and when there are reasonable grounds to believe that the issue constitutes a serious offence under legislation. If public servants go to the media with a disclosure of wrongdoing that doesn't meet one of these exceptional requirements and they suffer reprisals as a result, the commissioner cannot accept their complaint of reprisal because technically they never made a disclosure under the act.
In addition, the commissioner can refuse to deal with any disclosure if the commissioner believes that the whistle-blower is not acting in good faith, or it is not in the public interest, or for any other valid reason. Between the year 2007, when the commissioner's office was established, and 2015, the office received 623 disclosures of wrongdoing; the commission's own statistics show that only 10, or 1.6%, were considered as founded under the act. The office also received 207 complaints of reprisals. Only 10, or less than 5%, were referred to a tribunal.
These low rates can be explained in part by shortcomings in the act. They also suggest that the Integrity Commissioner's office has not proven itself as trusted and independent. These failures matter because they help foster an unhealthy and ineffective culture of silence in the public service.
The act also has other significant failings. It does not redress all forms of harassment, particularly passive retaliation. Instead, it takes a narrow and short-term view of what may constitute harassment. In reality, whistle-blowers are typically harassed over long periods by every method imaginable. The 60-day time limit to complain about a reprisal is totally unrealistic, because those who file complaints are often experiencing significant stress as a result of the harassment.
Legal assistance provided to whistle-blowers is completely inadequate, with a limit set at $1,500, or $3,000 in exceptional circumstances. That doesn't even get you a deposit for a lawyer. One former commissioner did not approve any whistle-blower funds for legal assistance. This effectively helped protect alleged wrongdoers who would be represented by a government legal team.
If reprisal complaints are referred, the disclosure tribunal has no authority to award costs to complainants. These are often long-drawn-out cases that can last for years. For example, the recent Sylvie Therrien case started in 2013; it's still ongoing. The investigation of reprisal complaints by the Integrity Commissioner must be fair and transparent. The Therrien case shows that the commission has been plagued with issues in investigations that lack basic procedural fairness.
If there is a claim of reprisal, the onus should be on the respondent to prove that their actions against the whistle-blower do not constitute reprisal. This was a recommendation of the Gomery inquiry in 2006, but was never implemented. However, article 31 of Quebec's new whistle-blowing legislation includes such a reverse onus.
The disclosure act carefully blocks all possible avenues to access any details of the commissioner's investigation, putting them beyond the reach of access to information laws not just for a few years, but forever. In addition, tribunal hearings may be conducted in secret and need not be filed at the Federal Court. When whistle-blower cases are settled by the Canadian government, there is a draconian gag order attached that prevents whistle-blowers from ever even discussing the wrongdoing.
There are critical exclusions from the disclosure act. Security agencies are excluded from the act, and employees cannot approach the commission to report wrongdoing or seek protection from reprisal.
The law does not address private sector misconduct at all, and private sector information cannot be used. Therefore, government misconduct involving the private sector cannot be investigated. Public-private partnerships are on the increase, and as contractors perform an increasing proportion of the government's work, this is a gaping omission in the law. The recent Phoenix fiasco is sufficient evidence that the act must be extended to cover potential misconduct when the private sector and government are involved.
Adequate corrective measures are also missing from the act. An important purpose of whistle-blower legislation is to investigate and correct wrongdoing. While the act gives the commissioner power to investigate individual disclosures, it does not provide the tools necessary to finish the job properly. Overall, the act does not ensure corrective action to end wrongdoing. The commissioner has no power to order corrective action, sanction the wrongdoers, initiate criminal proceedings, or apply for injunctions to halt ongoing misconduct. The commissioner can only report the found wrongdoing to the departmental head and then to Parliament and hope that something happens as a result. When it comes to reprisals, the commissioner can apply to a tribunal, which will determine whether or not reprisals occurred. However, the tribunal has limited remedies to offer complainants. How can wrongdoing be deterred or honest employees protected when there is no reliable mechanism to sanction proven wrongdoers or those who engage in reprisals?
In summary, here are our key concerns about the act.
The investigative process must be fair and much more transparent. The onus should be on the respondent in complaints of reprisals. The 60-day time limit to report retaliation is much too short. The legal assistance available to whistle-blowers is insufficient. Details of the commission's investigations are blocked forever from access to information requests. The provisions for sanctions and corrective action are inadequate. Information about misconduct involving the private sector cannot be used, and former public service workers are untouchable in the sense that when they leave the public service, the commissioner cannot investigate allegations of their misconduct.
In short, significant changes must be made to the act if it is to actually protect public sector workers.
I'd like to thank you for your time today. Ms. Harewood and I are ready to answer any questions you may have.
Merci.