Government Operations Committee on March 20th, 2017

[The Chair, Conservative, Tom Lukiwski]

Yes, you are out of time.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thank you very much. That was very helpful.

[The Chair, Conservative, Tom Lukiwski]

If you do have any other jurisdictions that you think would be worthwhile for our committee to contact, please submit them directly to our clerk. We'll give you that information.

Mr. Weir, please, you have seven minutes.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much.

Thanks, Professor, for taking the time to appear before our committee.

The term “whistle-blower” conjures up the image of someone blowing a whistle and provoking people to react to the problem. You made the comment that our whistle-blower regime is overly reactive and should be more proactive. I'm wondering if you could elaborate a little on what that means.

[Prof. A.J. Brown]

Yes, certainly. The front line really starts with what happens inside the agency, as I said, because the vast of majority of individuals don't even ever contemplate going outside and would see even the Integrity Commissioner as a last resort, let alone going to the media.

There does need to be protection for people who go to the media in reasonable circumstances, and currently that's another area of deficiency in your legislation. Those rules aren't of very high quality either.

The reality is that unless the regime is working in a way that means there is clear guidance, there is support for agencies to be getting it right in the first place internally, and that's being evaluated and monitored, then everything is reactive.

The key ingredients of the more proactive system are ones that are based on a level of mandatory reporting by agencies as to what disclosures they've received and how they're handling them. All our oversight regimes are now moving in the direction of automatic mandatory disclosure in real time, or close to real time, so that the oversight agency actually knows what the agency is handling and then can use their own risk indicators to say, “Okay, here are matters that we need to take a closer interest in right from the word 'go', rather than waiting for it to all be mishandled and then for a complaint of reprisal to come to us later, or for it to go to the tribunal later.”

Part of the skill and the capacity of the oversight agencies here is starting to identify that information, having that information, so that they know what agencies are handling, and then having those risk indicators to be able to say that these are the ones that they want to know more about now or that they will get involved in conciliation now, because it's high risk and high conflict already, or because the confidence of the whistle-blower internally is already falling apart in terms of what's happening in the agency.

Those are some of the ingredients of a more proactive regime, but it requires that sort of automatic mandatory reporting from the agency to the oversight agency. Then it requires the oversight agency to have both the will and the capacity to be able to be both monitoring and stepping in and then proactively intervening in individual cases where there are high-risk cases, where the problems, conflict, and damage will manifest. But if things are done differently early in the piece, it doesn't necessarily have to be that way.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks. That's extremely helpful, because one of the questions our committee has been asking of the central whistle-blower protection authorities has been why so few cases actually come to the tribunal. I think you suggest that there may be a lack of direct access to that tribunal, but the response we've often gotten is that these problems are being handled at the agency or departmental level. We really have no way of measuring that, so I think that direct reporting from departments and agencies to some kind of central body seems to be a key part of a better architecture.

I also wanted to ask you about public recognition of whistle-blowers. Is this something that you think is useful? Is it something that you think should be embedded in the Canadian regime?

[Prof. A.J. Brown]

I'm not sure how you embed it in legislation, but one thing that we know is crucial to making a good whistle-blowing system work in an organization is having the organization use its own history to get a positive message out within the organization about how real cases have been handled, using appropriate cases.

That approach seems crucial to their success. It's not so much public recognition as recognition within the organization, in a demonstration by the organization not only that it promises to protect people but is using its own case history to illustrate how it handles things in that organization. Few things can be more powerful than that. It's a form of recognition, but it's not focused on the individual. It's focused on the benefit of what the individual has done for the organization and for the public interest by being prepared to speak up. Also, it demonstrates that the organization has the capacity to deal with it well.

As for public recognition, I think attitudes are changing towards whistle-blowing. I think there's a much broader understanding of the public benefit of whistle-blowing and that whistle-blowers come in all shapes and sizes, but that very few are intending to ever become public figures, let alone martyrs, in the process.

I think, then, that it's really helpful when the government and the Parliament and the Integrity Commissioner can find ways of using those cases to demonstrate to people why whistle-blowing is important, and why it's valued, more importantly.

As for rewards and awards, we've had a great case in Australia in which one of our public health system whistle-blowers was the local hero and received a local hero award on our national Australia Day—the Australian of the Year award, which is very high-profile; it's a great honour. That type of recognition is not specific to whistle-blowing at that level, amongst the other health people, people finding cancer cures and other things. To have that whistle-blowing function recognized in that way was very powerful.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much. I'm afraid we're out of time.

Mr. Whalen, take seven minutes, please.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you, Mr. Chair, and thanks, Dr. Brown, for joining us—this morning, by your time—with your very interesting testimony.

In terms of objects of the act, there's nothing specifically listed in our legislation. There's a bit of a preamble. When talking about reprisal, I take you to mean that you don't believe that reprisal should be an object or a defence or believe in tracking down or punishing reprisal, but rather think we should focus on a duty to protect and support whistle-blowers, that this is what we should focus the legislation on, concerning downstream detriment suffered by whistle-blowers.

[Prof. A.J. Brown]

That's correct. I wouldn't say don't hunt down those who are responsible for deliberate reprisals or even negligent reprisals, but it's such a hard task. It can also often miss the point of the vast bulk of circumstances in which people suffer detrimental action. We've been criminalizing reprisals in Australia for more than 20 years now, and I think it's one of the most distracting and unproductive things we've done.

[Nick Whalen, Liberal, St. John's East, NL]

Let me follow through concerning the duty to protect and support. If someone felt, or their counsel felt, that they hadn't been receiving the right level of support or the right level of protection from the employer, what type of action would they bring and who would you suggest they bring it to? Would it be the same organization that conducts the reprisal adjudications, or would it be a regular human resources complaint under the labour relations standards?

What view do you take on that?

[Prof. A.J. Brown]

Under our commonwealth, our federal regime now, under the law partly as it is but also partly as it is likely to be after the next wave of reform goes through, if there has basically been a duty to protect and support but there has been a failure, in that duty and damage has occurred, under normal principles of tort law, for example, they would be entitled to go either to the Fair Work Commission regime, our equivalent of a national employment relations tribunal, which is a lower-cost jurisdiction, or they could go to the federal court directly, straight to a court of law. They couldn't do both, but they could do one or the other and seek their damages, which are uncapped for the federal court here, as they are in the U.K. employment relations tribunal, in recognition that even quite small breaches can lead to enormous damage. Small breaches or small failures in duty to protect and support can lead to the destruction of an entire career. The caps on damages that are in your legislation currently strike me as fairly farcical.

In addition to that, there's a huge problem of legal support and legal costs. In our legislation now, there is a trend towards the public interest costs rule that means a whistle-blower is automatically indemnified against the risk of paying the government's costs or the respondent's costs unless it's vexatious or an abuse of process. However, even then, they still have to come up with their own costs. That's a huge challenge that needs to be directly addressed.

The Queensland state regime, which was recently reviewed, is also recommending an additional administrative remedy that means the oversight agency could either require or force the employing agency to basically step in and mediate and conciliate and come up with an administrative remedy before there's any need to take action in any of those tribunals, simply to—

[Nick Whalen, Liberal, St. John's East, NL]

I'm sorry, Mr. Brown, I only get seven minutes, so I'm going to have to move on to my next question.

You've anticipated my question about legal costs. What about at the stage of disclosure of wrongdoing? Should legal costs or some type of mechanism be put in place there to help the whistle-blowers make their case, or is it really just to make sure they have protection and support downstream?

[Prof. A.J. Brown]

It's primarily protection and support downstream, because any process requiring the whistle-blower to put together a case is misplaced in the first place. All these protections should be triggered simply by a reasonable suspicion or a reasonable concern. The onus should pass to the agency or to the Integrity Commissioner to then deal with that properly and to do the investigation. As soon as it becomes a situation where the whistle-blower is responsible for “putting the case”, it's almost saying he or she has to investigate it, he or she has to put together all the evidence, and the whole system is far too reactive.

The whole idea is that it becomes the government's problem, the agency's problem, to deal with it responsibly, not for the onus to be on the whistle-blower.

[Nick Whalen, Liberal, St. John's East, NL]

I have a last quick question, Professor. With respect to the whole objective around protecting whistle-blowers based on their disclosure, what scope of disclosure would that be? How far should we go in allowing public disclosures or disclosures to various other agencies or to the police to be also protected under this legislation? Currently our disclosure definition is quite restrictive and it doesn't protect whistle-blowers who don't follow the letter of the act.

[Prof. A.J. Brown]

A good three-tiered regime will work quite simply. Any reasonable suspicion internally should automatically be protected. Any direct disclosures to a regulator or an integrity agency should be automatically protected, whether they've gone internally or not. Disclosures to third parties, whether they're unions, civil society organizations, or the media, should be protected in any circumstances where either those internal or regulatory disclosures were not adequately dealt with and there are reasonable grounds for concluding that after a reasonable time, or where the court or tribunal can be reasonably satisfied that there was no safe mechanism, either internally or to the regulator, for somebody to disclose.

If a person has reasonable concerns that there was no safe way to disclose internally or to a regulator, that person should be entitled to a public-interest defence if he or she is prosecuted for a breach of confidence or any other remedy. It needs to be quite an expansive regime to actually work.

[The Chair, Conservative, Tom Lukiwski]

Thank you, Professor Brown. Unfortunately, we have a long way to go, obviously.

Colleagues, I think we'll have enough time for two five-minute interventions before we adjourn.

Mr. Clarke.

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

Thank you, Mr. Chair.

I am happy to be back with the Standing Committee on Government Operations and Estimates.

Professor, thank you very much for participating in this morning's meeting. You live in an amazing country. I am jealous of your members who still have a true Westminster system of parliamentary supremacy.

With regard to the Public Servants Disclosure Protection Act, there are two potential avenues. That is what we have learned in this committee, or at least what I have learned. The first option available to public servants consists in going through the process within their department. Nearly every department has a unit of a dozen public servants who are responsible for enforcing the act. The second option is to go directly to the Office of the Public Sector Integrity Commissioner of Canada.

Do those two avenues also exist in Australia?

[Prof. A.J. Brown]

There certainly are, as well as there being entitlements to public disclosure where necessary, where it's reasonable. Generally, under all the Australian regimes there will be both those avenues, and you certainly can go directly to the ombudsman or an anti-corruption commission without necessarily having made the disclosure internally first, but, generally speaking, most people will make a disclosure internally first.

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

Okay.

My colleague Mr. McCauley and I, and probably other members here, are wondering a bit about the need to have two avenues.

Would it be appropriate and beneficial to put an end to the departmental process, which is an extremely expensive option? When the representatives of those departmental units came to see us, they said they may have two cases a year, at the very most.

Would it be better to have only the avenue that consists in going directly to the commissioner of integrity?

[Prof. A.J. Brown]

I don't think it would be better and I don't think it would be realistic, because people will always make disclosures internally. One of the good things about your law is that any disclosure to a supervisor automatically triggers the act, and that's as it should be because that's the front line. That's where disclosures are received. The key is then how the organization actually recognizes that those disclosures have been made and then manages them. As soon as you say to people that they can only disclose to a central agency that's outside their own agency, then you shut down the whole system, because most people don't want to go outside their own agency, even when they should.

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

I understand. Thank you very much.

In your research and your analyses, have you noted that certain disclosures had to do with competition among a department's employees? Some people may have made disclosures in order to advance their career or get some sort of revenge? Have you seen any such cases?

You said that reprisals sometimes stemmed from internal dysfunction. However, have you ever found that a disclosure had to do with a career-related issue?

[The Chair, Conservative, Tom Lukiwski]

Give a very brief answer if possible, Professor.

[Prof. A.J. Brown]

Certainly there are always some employees who will use whatever processes are available to game the system, or to game their employment, or to get revenge on other people where things have gone wrong. That's no different for whistle-blowing than for any other grievance process or dispute process. It should be no surprise that people will try to use these processes for a range of purposes for which they weren't intended. That certainly happens. The key thing is the capacity of agencies to minimize that and to make the rules such that it's minimized. It's a very small problem from everything we can tell, including the opinions of managers in organizations about their own procedures.

[The Chair, Conservative, Tom Lukiwski]

Thank you, Professor.

Our final intervention will be from Madam Ratansi.