Thank you very much.
It's a great honour to be here today.
It's an honour also to be in Canada. I'm a trained lawyer and called to the bar in Ontario, but I'm also a lawyer in the U.K. of the Law Society of England and Wales, and my career working on whistle-blowing has been in Europe and in the U.K.
I want to say that from a Canadian point of view, I started into this work because it seemed Canadian to me. It seemed to be about doing the right thing genuinely, honestly, when you come across wrongdoing. In the U.K. it was very much from a good governance, better regulation, good government point of view.
I think one thing you need to keep an eye on is that most laws that are being developed and have been developed around public interest whistle-blowing are both around the protection of the whistle-blower but also very much about freedom of and access to information—the public's right to know in the end, if they're being put at risk, if their lives and their taxpayer money is being misused.
I also worked a lot internationally, because as is the case for Tom Devine at GAP, there are few organizations that do this work. Where we were in the U.K., where I was deputy director for close to nine years, we actually helped draft a law that was put on the books. Organizations and governments and lawyers and jurists and parliamentarians came to us over the years, and so in the end I have set up Whistleblowing International Network with civil society organizations and a lot of public interest lawyers to talk about the tools and why this is so important internationally as well as within national jurisdictions.
I think this work that you're doing is deeply important for Canadian democracy. One thing that I think you've heard is that the object of the law seems already, if you read the preamble, very limited. In 2005, I remember, when the law came across my desk—because I was interested from afar—it felt like a very small step in a small direction. When I look at it now, it seems incredibly limited.
What has happened internationally is that the world has moved on dramatically. I also think that the law is not looking at it from the point of view of public information being dealt with properly—any information that discloses public interest issues—or of protecting those civil servants and others who raise those issues. It's also being too restrictive in the way that raising them is meant to go through a process.
One thing to look at is what the U.K. system did. They very much looked at protection as a way to facilitate the free flow of communication. It did not put any duties on the regulators. There was considered to be a system wherein different bodies had different regulatory authority. If they got information, it was within their mandate to deal with it. Then you'd be protected for going to that body. I think that was very much part of building on an already British system.
But for some of those regulators, as we've been through a period of deregulation and light-touch regulation, there has been a lot more perspective on making them do their jobs. Duties and responsibilities of the institutions to investigate and to deal with the issues have been greater and greater internationally. One way to think about it is in terms of accountability. Rather than how I blow the whistle and whether I do it right or not, it's a case of who is responsible if there is harm. Who has to account for it?
I don't mean scapegoating; I mean explaining your conduct. Closed systems of addressing information and protecting individuals always need to face the potential that they will be asked to explain their actions to an oversight body or to other systems.
When I look at the Canadian system now, although there are bits of independence, it looks like a closed system for the public service to deal with things and, even in the preamble, to maintain confidence in the institutions of government. That's an outcome for dealing with public interest information; it's not the goal. If the confidence is rightly judged not to be high enough and change is needed to regain it, you need to know about it.
This is where I see, in just the purpose of the law and the way it has been set up, that it is designed to be a little bit less than something that actually deals with the information that could be damaging and put people at risk.
You've heard a lot about the public-private split. That, again, was never part of the U.K. system. It fit in with the employment protection system that covered anyone with work. In fact they've extended it from being “employees”, in the legal definitions, to contractors, to interns, to all sorts of people who come across wrongdoing.
If you think about it as an early preventive method of dealing with things, you'll want people who come across wrongdoing to speak up early. Again, that's where I would think that the definitions and scope of the information in your law is too high for the early protection to happen. When people start to face retaliation or a shutting down of a system that doesn't want to be questioned, they become discredited over a long period of time, so you need to think about earlier protections, closer to the problems, and as well make sure that there are the routes outside so that those who are responsible earlier have to explain. That's where you have the safe alternatives to silence.
Direct access to remedies, I think you've heard a lot about that. I'm happy to talk further about that, but that's a natural justice issue. Not having that doesn't make a lot of sense.
As well, I think there seems to be a fundamental confusion around the scope of the public interest, about its being around conduct of individuals. In the reprisal element it's really important to think about detriment not being a j'accuse situation, that you have to necessarily find a wrongdoer in terms of the reprisals. You may have heard that the scope in the U.K. is around any detriment suffered, which is about not getting good evaluations, not having the career advancement. A lot of people will be involved in those decisions. There may not be someone out to get someone because of their disclosure, but a system that's starting to discredit them, that's not questioning, and that just carries on.
I've heard some statistics that maybe 50% or more of public servants in Canada at the federal level—it's even higher and I find that shocking—might feel either that they are not able to speak up about any kind of wrongdoing or ethical misconduct, or feel that they wouldn't be protected as part of the public service. There are a number of issues around the scope: the duties and responsibilities to respond to disclosures; making sure it is covering a wide range to fulfill the purpose of the act; the wide range of people who would have information that would be of value; that you look at it as who might be accountable for the wrongdoing rather than accountable for the way they tell you about it; direct access to remedies; and finally, access to information.
We've talked about the gag orders, but the idea that even the information that the Public Sector Integrity Commissioner's office receives is somehow never to be put in the public domain. I'm not sure if I've understood what the rules are of access to information of the PSIC's work over years, and if that cannot be eventually understood by the public. Those things, I think, are quite serious issues if you're talking about this as both a transparency and an accountability piece of legislation.
