Government Operations Committee on April 3rd, 2017

[Prof. A.J. Brown]

Yes, I certainly would.

[Kelly McCauley, Conservative, Edmonton West, AB]

Great. Thank you. I appreciate your time.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Mr. Weir for seven minutes.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much. We really appreciate your reappearance before our committee.

I'd like to pick up on this theme of mandatory reporting. Of course, one of the questions is mandatory reporting to whom? In Canada the reporting from departments and agencies is to the Treasury Board, which is the federal government agency serving as the federal government's employer. So the reporting is not to the Public Sector Integrity Commissioner or any other independent agency.

I'm less familiar with the Australian system, but I wonder if you could speak to where that mandatory reporting should be going. Should it be to a central employer authority in the government or to some more independent entity, such as the commissioner?

[Prof. A.J. Brown]

I think the short answer is that it should be the independent agency like the commissioner who has the responsibility. With the reporting should go not just the responsibility to file the statistics, but a responsibility to use that information to identify which cases need intervention. It's what we call the “intervention challenge”. It's a policy challenge, being able to monitor and then identify that, okay, here's a case that has commenced where we need to take an active role in overseeing how the agency is handling it, and possibly ensuring an effective investigation, but more importantly ensuring that the risks of reprisal or detrimental—

Oops, I think I've lost you.

[The Vice-Chair, Liberal, Yasmin Ratansi]

We can hear you.

[Prof. A.J. Brown]

You can hear me. Okay. We've just lost the video.

What I was saying was that the important thing is that the oversight agency be able to intervene. For that to be a bigger case, it really needs to be the oversight agency rather than just the general public sector management agency or the Treasury Board, in my view.

[Erin Weir, NDP, Regina—Lewvan, SK]

Okay. So without putting words in your mouth, what you would like to see in Canada would be to increase the resources for the commissioner to allow him to administer the whistle-blower protection system and oversee it among the various departments and agencies.

[Prof. A.J. Brown]

I think I missed the first bit of your question there.

[Erin Weir, NDP, Regina—Lewvan, SK]

No problem. I'm trying to translate your testimony into a recommendation for Canada. Our commissioner currently has very few resources. I take it that your sense would be that we need to invest more in the Office of the Public Sector Integrity Commissioner so that it has the capacity to oversee and administer the whistle-blower protection system between and among the different departments and agencies?

[Prof. A.J. Brown]

Yes, certainly. The resources are crucial. In Australia in the public sector there were or are an existing range of integrity agencies, like the state ombudsman or the Commonwealth Ombudsman's Office, in addition to others, including anti-corruption agencies, and the decision has usually been made to give the whistle-blowing oversight role to one of those existing agencies, so that they do have the resources and the critical mass and are not just a small fledgling office.

Sometimes that's contentious, but at least there's a logic to it in terms of the resources. Even then it has got to be a properly resourced function that at least is supported by a bigger agency, but there is a strong case for having a totally independent agency that just deals with the whistle-blowing, but it has to remain very well coordinated with the other integrity agencies, otherwise there will be conflict and the system won't work properly.

[Erin Weir, NDP, Regina—Lewvan, SK]

I think that's one of the challenges in Canada, that currently Treasury Board definitely has the resources to run the system, but it's not independent. The commissioner is independent, but doesn't have the resources to run the system.

I'd also like to return to a line of questioning by Mr. Drouin about the placement of whistle-blowers. You talked about different options, having the whistle-blowers being paid at home, or having them put to work in different departments or at least different parts of the department they're in. I wonder if you could comment a little bit more on that. Specifically, should the whistle-blowers themselves be able to choose where they're sent or how they're treated in that respect?

[Prof. A.J. Brown]

The whistle-blower's perspective on it will always be a crucial consideration, if only to manage their expectations actively. In some situations, their consent to a particular strategy will be required, and legally required, I would think. In other situations, they wouldn't have the final say, in effect, but you would certainly want them to be agreeable to it.

The other thing is that in some situations, the best thing that can happen is for everybody to just confront the conflict that's in the workplace or in the organization. If it's a low-level conflict that can be confronted by management just telling everybody to, as we would say, “pull their head in”, and understand that the agency won't tolerate any lack of respect for the due process, then everybody may just get on with their lives. Simply with support-type protection, a whistle-blower may be able to just survive in that workplace, and that may be the healthiest thing.

It's very context dependent. There just needs to be a full suite of options available for managing the situation and the right people put in place to make those decisions in consultation with the whistle-blower, definitely.

[Erin Weir, NDP, Regina—Lewvan, SK]

For sure. We've heard from a whistle-blower who is in a situation wherein the labour relations board has not yet ruled on whether it has jurisdiction to hear her case. The Public Sector Integrity Commissioner won't consider her case because it's under consideration by the labour relations board.

You've spoken about the importance of having multiple avenues that whistle-blowers can pursue, but I'm wondering if you can address the problem of having multiple authorities consider, or refuse to consider, the same case at the same time.

[The Vice-Chair, Liberal, Yasmin Ratansi]

You have about 10 seconds to respond.

[Prof. A.J. Brown]

Certainly the problem is having the law framed in a way where matters fall through the cracks. It's less of a problem to have duplication or redundancy in the system. What's important is that the oversight agency, in this case the Integrity Commissioner, has the power to continue to act and to make recommendations to clear those sorts of logjams. That's one of the clear defects in your legislation, currently.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We now go to Mr. Ayoub.

Will you be speaking in English or French?

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

In French, if he can understand me and hear the translation of my remarks.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Do you have translation, Professor Brown, or do you speak French?

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

No, no, he should hear the translation.

Thank you, Madam Chair.

Mr. Brown, my questions pertain to specific cases.

We have heard from countless witnesses, and specific cases were brought to our attention. Individuals came forward as whistle-blowers. They suffered reprisals or experienced problems in terms of their career progression afterwards. In some cases, the individuals even went bankrupt. Are there any cases in Australia that stand out? What incentives were introduced to counter the adverse effects that whistle-blowing triggers? Have you experienced any such cases?

[Prof. A.J. Brown]

I would say that in Australia, our compensation systems are largely untested and probably not best practice internationally. It's very important that the law provide really accessible and effective compensation systems. Because we've put a lot of effort into prevention of reprisals and detriment, and limiting reprisals and detriment, we're still not sure whether enough cases are going through. Probably not enough cases are going through. We haven't tested our law well enough.

Some of the precedents from the U.K. and from the United States for better compensation systems, whether it's through the labour board or through the courts, probably provide some of the better lessons about how to make those compensation systems more effective. Ours are largely untested.

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

You said that your system was largely untested, in terms of cases, and that we need to rebuild our system, start from scratch, to avoid specific problems and cases like the ones we've seen. Without any practical cases on your end, do you have any incentives or guidelines that would prevent specific cases in which individuals are the subject of reprisals?

What are the broad strokes? How would you recommend the Canadian government move forward? What corrective measures should it take first?

[Prof. A.J. Brown]

If I understand you correctly, we do have quite a lot of guidelines at the state and federal levels for helping agencies assess and prevent reprisals from happening. We have fewer guidelines on how to investigate and resolve detrimental action or reprisals if they happen. That is a weakness of the implementation of our system so far. That also relates to the problem that our compensation mechanisms are probably not as strong in the law as they should be.

That's why having the good compensation mechanisms.... If you look at the United Kingdom precedents, there's good evidence there of when they work and when they don't work, and then working back from that. I am not sure if that answers your question.

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

Starting over again, building an entire legal framework for whistle-blowers, starting from scratch, all of that takes a huge amount of time.

I'm trying to figure out what interim steps we could take. Rather than start over again, I am trying to identify certain changes that would shed light on the problems so we could fix them in the short term, without having to wait.

I am more interested in this approach because I don't know how long it would take to rebuild a system from scratch.

[Prof. A.J. Brown]

Certainly. It's difficult for me to advise you on how to best fix all of your legislation to make it better fit with your existing institutions, but I think you can focus on clarifying the objectives of the legislation so that they're clear, and then deal systematically with ensuring that disclosure channels are open, that responsibilities are clear on the agencies, that the oversight agency has its clear responsibilities, that the compensation provisions work, that you don't have the kind of double-up roles placed on the Integrity Commissioner, and that they're not a gateway that restricts people accessing their legal rights.

I think the issue is that most of the stakeholders whom I've seen, including the Integrity Commissioner, have put on the table things that need to be fixed. They are all valid issues. It's just that it's such a long list of issues that it's a very major amendment job to do it by way of a piece of legislation. That's the only thing that then makes me think that sometimes, rather than having that many amendments, it's easier to do a redraft. As a lawyer, that's why I say it looks like a piece of legislation for which it's worth starting again rather than doing a lot of surgery via amendments—but, of course, lots of surgery can be done.