Government Operations Committee on April 3rd, 2017

[The Vice-Chair, Liberal, Yasmin Ratansi]

You have 30 seconds for a question and answer.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

It won't be enough, I don't think.

[The Vice-Chair, Liberal, Yasmin Ratansi]

It doesn't matter. You can still ask the question.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I think the government or minister notified of the wrongdoing should bear the responsibility of initiating legal proceedings. That should not fall on the whistle-blower. Would you agree?

[The Vice-Chair, Liberal, Yasmin Ratansi]

Professor, can you give a quick response?

Did we lose you?

No, we've lost him.

[Prof. A.J. Brown]

I can hear you.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Can you give a quick response to Monsieur Ayoub's question, please?

[Prof. A.J. Brown]

I'm afraid I didn't hear all of the question.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Okay.

Mr. Ayoub, you can probably continue with your question.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I will only need 30 seconds.

I said that from my perspective, whistle-blowers should not bear the burden or weight of the poursuite. Do you agree with that?

[Prof. A.J. Brown]

I think if you're saying that they need legal protection from being sued or prosecuted, that's a fundamental part of what the law should already be delivering. It's one of the basic objectives of whistle-blower protection law, that it protects whistle-blowers from exposure to legal risks as a result of doing what is in the public interest.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We now go to the five-minute round, with Mr. Clarke.

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

Thank you, Madam Chair. It's an honour to have you with us.

Mr. Brown, thank you very much.

In the past few weeks we have begun to see some concrete reforms that could be put forward, for example, eliminating the good faith requirement, instituting a reverse onus on reprisals, increasing the punitive damages threshold, increasing the amount of remuneration for legal assistance against reprisal, and finally extending disclosure protection to former public servants.

I just want to know for now whether you consider these possible reforms as a good start. If yes or if no, what other specific reforms would you recommend?

[Prof. A.J. Brown]

I would say yes, all of those things should be done. I guess the problem is that doing those things won't necessarily make the system work. If the roles and resources of the Integrity Commissioner aren't clear, if the mandatory reporting of disclosures to the agencies is not clear, if you don't have clear responsibilities on the agencies to implement good whistle-blowing systems, and if the Integrity Commissioner or another agency isn't actually enforcing that or making sure it is occurring, then you still won't have an overall system that works.

I would say yes, those things should definitely happen. It may be that the committee can recommend two tranches of amendment, one being the things that should be done right now and the other a broader review to make those larger, systemic changes that will actually ensure there is a workable system.

My lack of familiarity with your system limits my ability to give you too much more advice on that.

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

Okay.

In our previous electronic encounter, you discussed the idea of making the Public Sector Integrity Commissioner more proactive. What does that actually entail?

[Prof. A.J. Brown]

Well, it entail some of the things that I just mentioned. It entails giving them a responsibility to actually audit and ensure that agencies are implementing good whistle-blowing systems. It includes that mandatory reporting process so that the Integrity Commissioner is monitoring how the agencies are handling those disclosures and, especially, is in a position to intervene and step into the management of particular disclosures. Rather than waiting for the whistle-blower to complain that they have suffered a reprisal later, a lot of the problems can be prevented by somebody stepping in early and saying, “Hey, why don't you handle that differently?” That's really a proactive measure.

Then, if somebody does actually assert that they've suffered a reprisal, there is a choice between just letting that person battle it out in the labour relations board, which is a reactive approach, or having the commissioner actually step in and effectively act for the whistle-blower. That's another option for where the Integrity Commissioner can be more proactive. There are different levels of proactivity in all of those different functions.

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

You also commented on the fact that the commissioner is more protective and investigative than anything else.

I would like to know how that is different from Australian best practices. We have 55 seconds.

[Prof. A.J. Brown]

In Australia, because there's a range of investigation agencies, anti-corruption bodies or the police or the auditor general or the ombudsman, the primary responsibility of the oversight agency is to ensure that those protection systems are working rather than necessarily conducting all of the investigations. There should be a separation between investigation and protection, because there's a potential conflict of interest. If you've investigated something and found no wrongdoing, it's then very hard to carry through and ensure that person is protected.

In Australia, we're still sorting it out. There isn't a perfect model yet, but at least there's a clear recognition that there needs to be that separation. There's a range of investigative agencies that are part of the scheme. It doesn't just all fall to the one, putting all the eggs in one basket, which seems to be the concept in Canada.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We now go to Mr. Whalen for five minutes.

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

Professor Brown, thank you very much for coming again and following up on last week's conversation. Many of us have had a chance now to review the Australian Capital Territory's act.

Sir, I'm trying to work through that act a little, since you've referred to it as one of the best models. I want to get a sense of some of the items there.

Section 21 of that act requires the investigating entity to go to the police if they suspect that there's an offence involved. How come the wrongdoer him or herself is not entitled to go directly to the police in order to maintain the protections under the act?

[Prof. A.J. Brown]

I think the legislation should work so that if the whistle-blower did go to the police directly, then they would still have the protections under the act. I think it's recognition that very often a whistle-blower will make a disclosure to somebody that involves a range of different things, or won't even understand what it is they're disclosing and that it is a criminal offence. I thinks that's just a minor part of that particular regime.

However, in relation to the Australian Capital Territory legislation, having said that it's good practice in Australia, I think it's important to recognize that it's good practice in terms of its clarity and simplicity. The style of this legislation for this type of purpose or these objectives is very good.

There are specific things that don't translate to federal levels. For example, the Australian Capital Territory is a very small jurisdiction. The independent oversight in that system is different from what we would have for our federal level of government. That would need changing, if you were to adapt it—

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

Thanks, Professor Brown.

[Prof. A.J. Brown]

—to the Canadian situation.

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

Continuing on this line about to whom disclosures may permissibly be made, we've heard from whistle-blowers and other groups that disclosure should be allowed to be made to virtually anyone. At a particular point in time, the person who ends up being a whistle-blower may not understand or appreciate that what they've learned alleges wrongdoing. They may ask co-workers. They may reach out to various people for advice as to whether or not the document or the information they've uncovered discloses wrongdoing.

That level of disclosure, and that sort of sidebar conversation that a person may be having laterally within an organization, isn't protected in any of the Australian acts that I've looked at. Do you think this is an oversight in the Australian legislation? Should we follow the views of the whistle-blowers we've heard from and try to protect those types of disclosures as well?

[Prof. A.J. Brown]

I think in many of the Australian public sector regimes, most of those types of disclosures would be covered. There's a move here, which I've been recommending for some time and that has been taking place, of recognizing that the disclosure should be protected if it contains evidence of wrongdoing, irrespective of what the whistle-blower or informant's belief is regarding that wrongdoing. That's so that there will be an objective test as well as a subjective test.

You can't necessarily cater for every single conversation that somebody would have. It's just not possible to legislate for or cover every single communication that might occur. Certainly in terms of most of the disclosure activity, in those regimes where there is the double-barrelled test, then I think the protections do apply.