Government Operations Committee on March 23rd, 2017

[The Chair, Conservative, Tom Lukiwski]

Mr. McCauley.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Friday, I just want to get back to what Mr Clarke was going on about. We know Treasury Board is responsible for setting up in each of the departments across the government the chief officer to set up whistle-blower protection and all the functions within the departments. We've heard quite a few different views throughout the whole committee process on this, and Mr. Clarke touched on this, that a lot of times that's part of the problem. If you're within department X, and there's wrongdoing, you report it up. We saw with Phoenix that all these items came up. Who do you report it to? You report it to the person who is in charge of Phoenix.

Should that role, that function, across all the departments be taken away so that instead of reporting to the chief executive inside, they'd report to, perhaps, your department or an independent department? That would be seen as a very strong, independent role, and people would have confidence to come forward—they're not going to be finking on their boss, so to speak, or ostracized—and they'd be comfortable that it's going to be fully independent from their own department.

[Joe Friday]

I think there are several issues in that question, one again being I think there's value in having access to as many routes or avenues or options as possible to come forward with your concerns.

[Kelly McCauley, Conservative, Edmonton West, AB]

Before you continue, part of the reason, as well, is I know there are concerns that the information on whistle-blowing, the protection and everything else, is also not being disseminated out to the public servants. We heard very clearly, and it's in all their surveys, that a very high majority do not feel comfortable with the process, do not know their rights, etc. My concern is, if we're leaving it with the departments for such an important role, instead of leaving it with, for the sake of argument, yourself, to ensure there are standards being set and rules being followed, it becomes a secondary issue, because I know the departments are also doing other work.

[Joe Friday]

Again, the....

[Kelly McCauley, Conservative, Edmonton West, AB]

I'm looking for your opinion. It may be difficult.

[Joe Friday]

Yes, you raise a very important issue, and one that I would be lying if I were to say we have not thought about and discussed ourselves over the years as to what the best structure might be. Right now, reporting is done through Treasury Board. If there's an internal finding of wrongdoing within a department, it's very different than if I make a finding. If I make a finding, I have to report this to Parliament. So I've tabled with the Speaker of both Houses my two reports in the last two weeks, had a press conference following it, had coverage. That is an important part of transparency, from my perspective.

That obligation is not identical for internal disclosures. The information you will get is the information in the annual report on the PSDPA that Treasury Board puts forward. That may be a reflection of a presumption—and I don't know—that the more important cases that deserve a public airing are those that end up coming to me, and the presumption is that the less serious might be dealt with internally. That is not consistent with what we see. We see everything from extremely widespread, important issues to individual issues that someone just doesn't feel like coming forward with internally.

The act, and almost everything in the act, tells me what I am supposed to do as commissioner. The act speaks very little about what happens internally with the internal regime. That is left for internal administration. When I speak to senior officers—

[Kelly McCauley, Conservative, Edmonton West, AB]

But the concern I have, and the experts we've spoken to have, is this role is taken away from them. It's nice that we have you, but this role is given off to their departments and there's no oversight from yourself for standards, for transparency and, most importantly, for protection for our public servants.

[Joe Friday]

I believe that the desire was to give that role to the employer, to one of the central agencies, that being Treasury Board in this case, because of their responsibility for administration of this act, and, as I mentioned earlier, section 4 of our act. But that oversight doesn't exist in my hands. Again, the act, I think is quite detailed about what I can and can't do, but relatively silent with respect to what others can do.

One small anecdote, when I was general counsel, when I came over—

[The Chair, Conservative, Tom Lukiwski]

Very briefly, sir.

[Joe Friday]

—I was asked by a department to give an opinion on an internal disclosure, and I couldn't do that because they had their own lawyers. The administration or oversight of the internal system is very different from my role, as an independent commissioner, and the rules that apply to me.

[The Chair, Conservative, Tom Lukiwski]

Thank you.

Mr. Fonseca, welcome to our committee. You have five minutes for your intervention.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Thank you very much, Mr. Chair. It's a real pleasure to be here.

I would like to hone in my questions on possible unintended, I would say, duplication or inefficiencies. Witnesses have suggested allowing PSIC to issue corrective measures when there's a finding of wrongdoing, however the act is not intended to replace other mechanisms or processes provided for in other pieces of legislation or collective agreements, i.e., criminal proceedings under the Criminal Code, or grievance procedures, harassment complaint processes, etc. A possible alternative when there's a finding of wrongdoing is to allow the information collected during an investigation to be used in the course of a disciplinary process under the Public Service Labour Relations Act.

What is the current system for disciplinary measures?

[Joe Friday]

I do not have the power to order discipline. The last two case reports involved behavioural issues of executives. In the first one, one of my recommendations was to take appropriate discipline. I'm not on the ground in that department to know what the person's record is, what the effects of the actions were. We put it in the hands of the deputy minister. A key pivot in this entire regime was accountability. It's holding to account a deputy minister, a chief executive, for whatever happens in his or her department under their watch.

For example in the first case report, if I were to say I think the discipline should be a week without pay, that becomes a labour relations issue between that employee and me. If I say the person should be dismissed, then I'm embroiled in a labour relations wrongful dismissal suit. I think it's very important to drive back the accountability to deputy ministers. I have the right, the authority, and the obligation, as you'll see in my annual report this year, to follow up and report on what a deputy minister has done with my recommendations for corrective action. A follow-up power is provided in the act, which I think is a very powerful tool for me to use to hold people accountable, as opposed to moving in and stepping into their shoes and saying I'm there to manage their department for them.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

With regard to the duplication, the investigation, and all the findings that have come from that investigation, do you feel they need to be done again by another body? Within this proposal, should that not be able to use that investigation that was done already? Why go through all that again?

[Joe Friday]

When I issue a case report, prior to the case report is a full investigative report with all the details. The deputy minister has that. They can base that on a very detailed case report.

For example, the last case report I issued, which is about 12 pages in what we released publicly, behind that is a huge preliminary investigation report that all affected parties comment on, and then a final report. That could be, 80, 90, 100 pages of detail, including more specific detail about what was done and the basis of my finding. The public sees a document specifically created for public consumption. The report will sometimes have witness names—we also protect the names of all witnesses and provide redacted reports if and when necessary—witness testimony, specific details, some of which you see in a case report, but not all. I do believe that the deputy minister, who is responsible for following up on a recommendation, certainly has a lot of information. They can nonetheless choose to continue with a separate investigation or a separate process flowing from mine, but they don't redo my work.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

It sounds as if yours has been very comprehensive.

Do you feel the act should be changed to address that?

[Joe Friday]

Our ability to make recommendations for corrective action and to follow up on them appears to me to be working very well in the 13 case reports that we've had to date.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

To complete our second round, we have Mr. Weir for three minutes.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much.

We have a protection regime for whistle-blowers from the federal public service. Other countries have whistle-blower protection regimes that apply to the private sector, to companies, to outside organizations. I'm wondering if you think Canada should pursue that as we look at reforming and improving whistle-blower protection.

[Joe Friday]

Certainly this act was created to provide a whistle-blowing regime for the public sector. My belief is that everybody in this country has the right to be protected against reprisal for coming forward with information that they reasonably believe to be true. I don't know if this act is the appropriate vehicle. I also know that all provinces and territories, except the Northwest Territories, Prince Edward Island, and B.C., if I'm correct, have a form of whistle-blowing protection to cover the provincial public sector. Many private companies have their own internal whistle-blowing regimes as well.

What we do not have—and I agree with you—is one system that covers both private and public sectors. In smaller, perhaps less geographically and less constitutionally divided nations, that might be easier to do. As a matter of principle, I think whistle-blowing protection for both sectors is a goal.

It's a mark of an advanced democracy to have a whistle-blowing regime that protects all citizens.

[Erin Weir, NDP, Regina—Lewvan, SK]

I'd put the same question to you, Ms. Boyer, because it strikes me that some of the cases before the Competition Tribunal might be illuminated if there were more protection for whistle-blowers in the federally regulated private sector.

[Rachel Boyer]

I'm not sure. If you look at it, some of the cases before the Competition Tribunal deal with mergers and that type of information....

[Erin Weir, NDP, Regina—Lewvan, SK]

No, but more evidence might come forward if there were protection for whistle-blowers in private companies as well.

[Rachel Boyer]

Perhaps. I'm really not....