Government Operations Committee on March 23rd, 2017

[Joe Friday]

Again, I might make the distinction between advice and information. Certainly, as we know from section 4 of our act, Treasury Board has the statutory duty to create that environment within which whistle-blowing can occur and to disseminate information, so there's one important possibility that's already addressed in the act.

The role of the employer in the federal public service is an extraordinarily important one. I know I'm stating the obvious, but I think it's important for the employer to be seen by all public servants as supporting whistle-blowing. It's one thing to see the commissioner's office playing that role, and the tribunal, even, playing that role, but the employer I think has to be seen as actively supporting the act of whistle-blowing in order to help move along this cultural change that we're speaking of.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

We have Mr. Peterson for seven minutes, please.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Thank you, Mr. Chair.

I'll follow up a bit on the theme here. I want to go back, I think, to maybe the first principles here and the purpose of the act. The way I see it, the act is a public interest act. I think without doubt we can all agree on that.

[Joe Friday]

I would agree with you.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

In a way, we're almost deputizing employees to help root out any wrongdoing in the public sector, the public service. But we seem to be empowering them without giving them the proper protections that they may need to do their jobs. I think everyone's hitting on it. I think the fundamental role of this act should be to protect the discloser, the whistle-blower, and not necessarily the information that they're providing . I think that's even a shortcoming in the title of the act. You can go as far back as the title. It's protecting the disclosure and not the discloser. Conceptually, I think that's wrong.

I think we all agree, and when I say “we” I mean my fellow committee colleagues here, that the whistle-blower needs the utmost protection. Whether it's the act that fails or the processes that have been generated from the act, or whatever reason, that seems to be a shortcoming of the act. I think even all the witnesses here agree that those shortcomings are unacceptable, and we're all looking to how we can get rid of those shortcomings and improve it.

With those first principles in mind....

Sorry, did you have something to say?

[Joe Friday]

I was just going to say that I'm in full agreement. The heart and soul of a whistle-blowing regime is the reprisal regime, the reprisal protection. Certainly, we want people to come forward with wrongdoing and we—as I did in the last two weeks—published two case reports of wrong-founded wrongdoing, which got significant discussion and coverage. That's a very important part of normalizing the act of whistle-blowing. But the heart of a whistle-blowing regime is the person who's coming forward. I fully agree.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

And we want them to come forward because, frankly, I think they're doing a service to Canada when they do come forward, and they should be afforded all opportunity to do so. This can go back to the basic provision of legal fees. I think anyone who's ever practised law in this province knows that $1,500 gets you a first meeting with any competent lawyer.

[Joe Friday]

You'll note that I have made a proposal to not only provide increased amounts for initial legal advice, but also to give the tribunal the express capacity to award legal fees, which it needs and it doesn't have. I would say the heart of my recommendations are those that focus on the reprisal regime, from reverse onus through to legal fees through to interim remedies, which I think is an extraordinarily important proposal on our part.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Yes, and I think the act obviously acknowledges that reprisals are a significant hurdle preventing a whistle-blower from coming forward.

I would also suggest that just the process itself may be an obstacle to whistle-blowers coming forward. Again, I go back to, “Why should I?” If I'm that person, I have to ask myself this. I have a family to support. I have a good job. I like my job. I like my co-workers. All this is potentially at risk just by my coming forward, even without any reprisal. You're labelled; you're thought of differently.

Then you have to subject yourself to, I think, an onerous process, procedurally speaking. Just navigating this, you would need legal advice just to figure out where to go, who to talk to, who to air your grievance with. Should I go to the union? Should I go to my harassment officer? Do I go internally? Do I go to your office, Mr. Friday? What happens if I do that? What are the consequences? All this analysis needs to be done, frankly, without the skills to do the analysis, because no person would necessarily be appreciative of all the consequences of these big decisions.

I understand the reprisals need to be addressed, but how can we make it easier for someone who sees wrongdoing to just come forward and know that's okay and that should be a natural part of the job, and we're grateful you're coming forward? How can we get to that point?

[Joe Friday]

I don't want to sound like I'm being evasive by saying it goes to the issue of a larger cultural change. I can point to some of the recommendations in the research paper we just released, which I support. They go to changing styles of leadership, styles of communication, creating a different sense of what loyalty means. The preamble of our act specifically says that this act attempts to balance the constitutionally protected right of freedom of expression with the duty of loyalty to the employer, as has been expressed by the Supreme Court in several cases.

The system we have not only for whistle-blowing but also for any disputes or conflicts—and I know this from my own alternative dispute resolution practice—is plugged into a formal system, and the more formal, the longer, the more expensive the system is, the more we see an increased trend toward litigiousness.

One of the ironies, perhaps one of the sad ironies, of getting well known, or better known, through our now 13 case reports is that the people are realizing that maybe they do have some teeth. People are fired. People are resigning during investigations at high levels. This seems to have had the effect of people lawyering up earlier in the process, which is understandable but not necessarily helping to increase access to the justice system, of which we are arguably a part.

With respect to reprisal specifically, and true to my earlier—

[The Chair, Conservative, Tom Lukiwski]

I'd ask you to please keep it brief.

[Joe Friday]

Okay. The issue of broader and more direct access to the tribunal is one that is currently under discussion, intensely and intently, in my office and will be the subject of some review during a lean process of investigations. How can we satisfy the requirement to carry out an investigation without being told by the court that we didn't do enough and we have to go back and redo it? How can we implement our act so that we do a screening and then let the course of events proceed rather than going through a full investigation and then a full hearing before the tribunal? To get through our office faster or more directly to the tribunal is something about which there should be a lot of discussion, and it flows directly from my proposal to create a reverse onus.

[The Chair, Conservative, Tom Lukiwski]

Thank you.

Mr. Clarke.

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

Thank you, Mr. Chair.

I will try to explain something I have been thinking about. We will see how it goes. I will speak as slowly as possible for you, Mr. Friday. However, my remarks are addressed to everyone.

This week, we heard from a number of witnesses who talked about the shortcomings of the act. They said that our law may be even worse than that of Zambia, I believe, or perhaps another African country was mentioned. In fact, I believe that we cannot make comparisons with the laws of other countries because each country has its own political culture and political system.

[Joe Friday]

I completely agree.

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

I have to say that the analyses we are carrying out in order to discover the shortcomings and problems amount to a microanalysis. From the outset, the committee has focused on the details of the bill and the internal mechanisms. I am wondering whether there is a broader problem.

In fact, in Canada, it is as though we vacillate between the U.S. and the U.K. mechanisms. I will elaborate on what I am trying to say. In the United States, accountability for political decisions made by the bureaucracy rests with the authority responsible for the public service whereas in the UK it is a function of ministerial responsibility.

We definitely see that ministerial responsibility, in the most extreme cases, that is, the resignation of a minister, practically no longer exists in Canada. No politician has the courage required to resign. We could talk about this at length.

It seems that, in 2007, we wanted to create a law patterned after what was being done elsewhere in the world. However, in some ways, it is not adequately aligned with our political system, which is based on the Westminister system.

My colleague spoke about the internal mechanism. If a public servant witnesses an act of wrongdoing, he or she reports it to the senior officer responsible for disclosures within the department. This senior officer must inform the deputy minister of the department in question, and not the public or the Commissioner. The deputy minister may perhaps inform the minister—but surely will not—or perhaps will inform the Treasury Board, which is supposed to be at the top of the decision-making chain. This stems from our parliamentary system of ministerial responsibility.

We can see this with the Phoenix pay system. No employee who witnessed wrongdoing with respect to Phoenix would inform the senior officer at Public Services and Procurement, who in turn would tell Ms. Lemay. Ms. Lemay is managing the crisis at this time. Her minister asked her to resolve this as quickly as possible stating that she herself would not resign on this account. In the past, the minister would have resigned a long time ago, if only as a matter of honour.

Do you not believe that instead of reporting wrongdoing to the Treasury Board or the deputy minister, the senior officers should report the wrongdoing directly? It would be a way to establish a real system of accountability for the bureaucracy.

[The Chair, Conservative, Tom Lukiwski]

Unfortunately, the preamble to the question took about four and a half minutes—

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

Yes or no?

[The Chair, Conservative, Tom Lukiwski]

—so you have less than 30 seconds.

[Joe Friday]

We are talking about the independence of an external agency with respect to an internal process. As the independent Commissioner, it is difficult for me to manage an internal regime.

But I do understand the very issue of the potential conflict. I often say that the senior officer in a department is the one job I would never want.

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

But—

[Joe Friday]

People come to you, and you are part of that system.

[The Chair, Conservative, Tom Lukiwski]

Unfortunately, we're—

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

I just want to make sure the preamble is in the blues, Mr. Chair, because this potential conflict—

[The Chair, Conservative, Tom Lukiwski]

Everything you have said, trust me, will be included.