Government Operations Committee on April 3rd, 2017

[Erin Weir, NDP, Regina—Lewvan, SK]

[Technical difficulty--Editor] the point previously that the problem often is not deliberate retaliation as much as people inadvertently being allowed to fall through the cracks. Do you think that fines and penalties for retaliation are things we should focus on?

[Prof. A.J. Brown]

They should be part of the law, but they shouldn't be relied on as the mainstay for protecting whistle-blowers, because they simply don't protect whistle-blowers. All that they do is to impose penalties on people who have caused damage to whistle-blowers. In my view, it can be valuable to have that criminalization of reprisals, but it's much more important to have clear responsibilities on people to protect, and then liability that falls on those people if they fail to deliver on those obligations to protect. Those, actually, can be quite separate and very different from any criminalization or penalization of reprisals, which tend to rely on those reprisals being either deliberate, which is actually quite rare but very hard to prove, or criminally negligent, which is also very hard to prove. It needs to be much more along the lines of normal negligence.

[Erin Weir, NDP, Regina—Lewvan, SK]

Right.

We don't have a lot of time left, but you did identify the Australian Capital Territory as the gold standard of whistle-blower protection. I wonder if you could just let us know what you see as the most important features of that system that make it so effective.

[Prof. A.J. Brown]

I just want to reiterate that I wouldn't just try to copy the Australian Capital Territory's law. It's just an example of a very simple, well-drafted, but comprehensive law covering this sort of field. From that point of view, it provides a very good precedent, because it covers all aspects of what a whistle-blower protection law should be doing. The exact way that it does it in many areas you wouldn't directly copy. It could either be improved upon or you would simply have a different institutional arrangement for Canada, in particular in terms of the stature, the role, and the independence of the oversight agency. The compensation mechanisms would probably be different. The rules on when disclosure is protected if you go to third parties could probably be improved upon.

It's very difficult to pick one law off the shelf and say this is the gold standard. When it comes to the simplicity and the clarity of the law, then with respect to that, I think the Australian Capital Territory law is a very good precedent to look at, but I'm not suggesting that you simply copy that for Canada.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We have one last question, from Mr. Whalen.

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

Thank you very much, Madam Chair.

Professor Brown, I do very much like the way the Australian Capital Territory's act is drafted, because it allows us to focus in on some of the finer points in our act to see how they might differ so we can ask you some questions.

One of these has to do with the nature of what constitutes disclosable conduct. Our act goes so far as to include failure to live up to the values and ethics codes put forward by each individual department, which are very broad motherhood-based codes. The Australian Capital Territory's act is limited to the very lowest-level conduct, which gives reasonable grounds for disciplinary action against the person. Disciplinary action is defined pretty narrowly to include conduct that could lead to termination.

From your perspective, is the whistle-blower protection legislation the right place to include lower-level human resources complaints, or should we raise the standards so that the whistle-blower protection law focuses in on things that are truly egregious?

[Prof. A.J. Brown]

I think the short answer to that is that you need to set the standard reasonably high. We're talking about public interest disclosures of wrongdoing. Certainly it should be broader than simply disciplinary action that could lead to termination. It should also include serious maladministration or defective administration, waste of public money, environmental risks, risks to public health, and all of those sorts of things.

Certainly our experience has been that it's a mistake to treat any and every breach of the public service code of conduct as a public interest disclosure. Doing that is basically an unmanageable step for a whole variety of reasons. In our federal jurisdiction, they made every breach of the Australian public service code of conduct potentially or automatically a public interest disclosure, and doing that was a mistake. The recommendations from the most recent review were to wind that back.

If there's a systemic problem with major breaches of codes or employment standards or processes, which would amount to some sort of breach of the law or an offence, and those become really serious, then those could be the subject of a public interest disclosure that triggers the whistle-blowing protection regime that we're talking about here. Certainly looking at every single potential breach simply confuses and overloads the systems. It's like using a sledgehammer to crack tiny nuts.

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

Thanks, Professor. I think maybe we should consider a similar recommendation.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Professor, on behalf of the committee I'd like to thank you for your time and your thoroughness in giving us insight on our legislation and what can be changed. On behalf of our committee, thank you very much. I know it's Tuesday morning for you and that you woke up early to answer our questions.

Committee members, it being 6:15, the meeting is adjourned.