Evidence of meeting #78 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was wrongdoing.
A recording is available from Parliament.
9:30 a.m.
Conservative
The Chair Conservative Tom Lukiwski
Thank you, sir.
I think it's the first time we've had an intervention from a parliamentary secretary. Madam Murray, you have five minutes, please.
9:30 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Thank you very much.
Commissioner, the committee heard from a witness that the internal mechanisms of disclosure within departments should be scrapped. That was over concerns of potential conflict of interest, the lack of objectivity or independence. However, as we know, the mechanism of internal disclosure is being used even though the employees have the choice of using your office or internal mechanism. I understand that in an interview, you offered a potential solution that would maintain the internal system but provide more independence in the case of potential conflict of interest. You recommended that independent third party investigations could be a standard practice when complaints are lodged. One quote is that this could go“a long way to demonstrating commitment on the part of senior management that they're committed to resolving an issue and resolving it in a way that supports objectivity and neutrality”. I note that doesn't appear in your set of recommendations with respect to supporting whistle-blowing. I wanted to ask you to comment more about it and provide us with your view. How might that process work, and would that help provide the independence from a potential conflict of interest?
9:30 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
My remarks were in specific respect to recommendations I had made in a case report that I tabled with Parliament. That involved allegations of harassment in which I found that a deputy minister and a senior official had essentially gone around the existing procedures. That was the nature of the wrongdoing, so my recommendation for corrective action was that when harassment cases are brought against a senior official, departments should consider not dealing with that internally. That was to deal with the specific case of harassment, not necessarily all wrongdoing.
With respect to the internal and external options, I do think it's important that whistle-blowers have a choice. In the previous iteration of this legislation, whistle-blowers were required to exhaust internal options before coming to my office. Now they have the choice. I think the goal then becomes to ensure that whistle-blowers are able to make an informed choice about exercising their options. For example, if a whistle-blower does not go internally because he or she doesn't trust the department's internal system, that whistle-blower has the option to come to me.
I do have some concerns about shutting off options that are open to whistle-blowers. I'll note that according to my reading of Professor Brown's testimony, he was also in favour of maintaining the internal system to provide those options. I think it would be very useful to support the internal system to be clear as to what happens when someone goes internally and have some consistency perhaps among departments with respect to how they treat these whistle-blowers. I also note in our research paper the issue of having options is perceived as a positive thing as well.
9:30 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Okay, so that could be in policy and procedure as opposed to being anything in the legislation.
9:30 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
The act currently identifies who you can go to. As I said earlier, one of my proposals is to broaden that, giving express flexibility to a whistle-blower, given that the types of cases that people come forward with and the types of people who come forward are so varied and so different. Sometimes people are coming forward to have something confirmed, to have a suspicion confirmed. Sometimes someone comes forward with 13 boxes full of detailed documentation. I think more flexibility to respond to the needs and interests of an individual whistle-blower ultimately supports whistle-blowing within the federal public sector.
9:35 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Okay, so a whistle-blower-centred process is what you're talking about.
9:35 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Yes, I think it's about respecting the choice of the whistle-blower. That goes to, for example, as we were just talking about, conciliation with reprisal victims on the reprisal side of the ledger. If a reprisal victim or a reprisal complainant is making an informed decision to settle, that it is the right thing for them at this time, I question that choice, but I respect it after I question it.
9:35 a.m.
Conservative
The Chair Conservative Tom Lukiwski
We're out of time.
Mr. McCauley, I understand that you will be starting but Mr. Clarke will be splitting time with you. You have five minutes, please.
9:35 a.m.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Ms. Murray, how long is your question? You can continue for a minute or so, if you want.
9:35 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Sorry for the length of my response.
9:35 a.m.
Conservative
9:35 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Well, this is a second matter. I want to ask a bit about the good faith requirement.
9:35 a.m.
Conservative
9:35 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
We've heard from other witnesses that the good faith requirement should be eliminated, and you mentioned that yourself. I would like your comment on the concept of there being a reverse onus, in effect, on good faith so that there is a presumption of good faith—
9:35 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
Yes, at law.
9:35 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
—until such time as it's demonstrated otherwise, and if it should be demonstrated otherwise, then there is an off-ramp to the process. Would that address the concern you have?
9:35 a.m.
Commissioner, Office of the Public Sector Integrity Commissioner of Canada
If we remain focused on a whistle-blower-centred model that says, if that person has reasonable belief in the truth of what he or she is coming forward with.... They can be mistaken, as we all make mistakes and we can all be wrong, but if they have reasonable belief in the truth of what they're coming forward with, to me that settles it. I think that takes us away from the concept of intention and motivation.
For example, if someone blows the whistle on me, they may hate me and want me to be fired or die a painful death, or whatever. That has nothing to do with the fact that, if they come forward with facts about me misspending or abusing public funds, the motivation that they want to harm me is irrelevant. The only thing that is relevant is whether I abused those funds. If they have reasonable belief that I did, then I think we simplify matters by pushing motivation completely away.
An earlier version of our legislation actually had the ability of the commissioner to reject something if it was frivolous and vexatious. Parliament then replaced that with the good faith requirement. I think the next step is to get rid of the good faith requirement completely and start with the presumption that people are coming forward with reasonable belief.
If there's evidence to prove that someone did not have reasonable belief in what they came forward with, it would no longer be a protected disclosure. So I think it works itself out.
9:35 a.m.
Liberal
9:35 a.m.
Conservative
9:35 a.m.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Mr. Friday I know is fighting a cold and losing his voice; we'll give him a break.
How many issues or complaints are you dealing with per year?
9:35 a.m.
Executive Director, Public Servants Disclosure Protection Tribunal
Per year? We've received seven.
9:35 a.m.
Conservative
9:35 a.m.
Executive Director, Public Servants Disclosure Protection Tribunal
We've received seven—