Government Operations Committee on April 3rd, 2017

[The Vice-Chair, Liberal, Yasmin Ratansi]

Members of the committee, we are beginning.

Professor Brown, this is Yasmin Ratansi. I'm standing in today for our regular chair, who is absent.

Do you have any opening remarks after what you said the last time?

[Professor A.J. Brown, Professor, Griffith University, As an Individual]

No, Madam Chair. It's a pleasure to be back with you again. I think I'd be happy just to get back to further questions from the committee, however I can help.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Okay, perfect. That will give our committee more time to ask questions.

The first round of seven minutes is for Monsieur Drouin.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Thank you, Madam Chair.

I just want to touch on a couple of points that we've heard from a few other witnesses. First, I want to ask if you think the following is a good idea. Within departments there are disclosure officers for whistle-blowers, and then we have separate third-party offices. I haven't made up my mind. I'm still trying to understand if it's a good idea to have an internal office, let's say. For example, at Health Canada, they have their own office that whistle-blowers can go to, or, should they choose, they can go to the other office. Do you think that's a good idea? In your experience in other jurisdictions, say in Australia, are there examples like that?

[Prof. A.J. Brown]

Yes, there certainly are, and it certainly is a good idea. There are actually four different layers or levels of players, if you like, in the disclosure process and the protection process. The first layer is actually line management and line supervisors as a disclosure option. The second is the internal audit, internal disclosure system, the agency's centralized system, which for a lot of employees is as challenging to go to as it is necessarily even to go outside.

Then you have other regulators. They might be the police, the auditor general, or any external independent agency that could be receiving disclosures and investigating. Then you have the agency who's responsible for ensuring there's protection. It's not so important that they're a disclosure channel, but typically they will be a disclosure channel as well, but they're certainly there as an independent agency to protect whistle-blowers. So you actually have four different actors or players, and that's without talking about the media, obviously, and third-party disclosures.

It's actually very important that there be multiple reporting avenues, because in any given situation you can't predict who can be trusted and who will be trusted by either the agency, or by the discloser or whistle-blower. There basically has to be a choice, and then it's important that all those players in the game know their role and be coordinated. That's why it's complex, but there's no other way around it. As soon as you start limiting it and saying that you only have one disclosure option, then you immediately make the whole system much less feasible, because it's very hard for people to go outside their normal chain of command very often. It's just not natural, and they just won't do it. But in other situations, you really have to provide for that because they simply won't trust either their line management or even the internal disclosure or internal audit unit. At this point they won't trust them either, and sometimes for good reason. That's why you must have multiple reporting channels.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

In your experience, within those reporting channels, has one ever impeded the process of another? We were given an example two weeks ago where a decision was still awaited because it was stuck, essentially, between two processes. One organization doesn't want to move until the other organization moves, and now it's creating a bit of a kerfuffle between those two organizations and, unfortunately, the whistle-blower pays the price.

[Prof. A.J. Brown]

Yes, that will certainly happen if the processes aren't coordinated and if there isn't an oversight agency that has the authority and is in a position to clear those logjams and sort things out quickly. If those two things aren't in place, then, of course, you'll have confusion and conflict, and there will be interference or impedance, but that's no different from any other part of public administration where you have multiple processes. It's important that it be professional and not be left to chance.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

The other question I wanted to ask about your experience in dealing with other jurisdictions is how we ensure that whistle-blowers are protected during this process and are paid. Some testimony has indicated that perhaps we should give them the option to go home with pay until the process is resolved. We've heard from certain witnesses that we want to ensure that perhaps they should get priority staffing in another department if the whistle-blower disclosure warrants an investigation. Do you have any opinion on that, on whether or not we should provide payment if they go home or give them staffing priority to get them out of the organization where they are whistle-blowing?

[Prof. A.J. Brown]

I think either of those things should be available as options. Certainly, whistle-blowers shouldn't be sent home without pay. And this is where the Australian systems have more of a track record and a history in the prevention and assessment of reprisal risk or detrimental action risk, and the management of that as a real priority, over and above any other country, I think.

What's crucial is that it be part of the process of both the agency and the oversight agency, either at the outset of the disclosure process or very early in it. It's actually somebody's job to say, “Okay, what is the best strategy for managing this situation?” That's needed because the situation will always vary.

If you have a situation where it's a largely confidential disclosure and there's a fraud investigation going on, you don't want to be moving people around, because that will just alert people that there's an investigation going on. You can manage the person in the workplace as more or less a confidential informant in a very discreet way until such time as the investigation opens up, and then you have to reassess the options. If people are going to accuse that person or rightly suspect that person of being the whistle-blower, you have to assess the options then. What are the risks they face? What's the best way of dealing with it? It's a completely different situation from where you have a one-on-one type of disclosure by a whistle-blower against somebody else in the workplace. It's known. The conflict has broken out. It's a completely different situation. How you handle the whistle-blower will be seen by the rest of the organization and other employees in relation to how—

[The Vice-Chair, Liberal, Yasmin Ratansi]

Mr. Brown, thank you. We have to go to the next questioner, Mr. McCauley.

[Prof. A.J. Brown]

Certainly.

[Kelly McCauley, Conservative, Edmonton West, AB]

Welcome back. Thank you again for your help.

I just want to follow up on Mr. Drouin's comment about our internal mechanisms, where which every single one of our departments has resources for people to “go to”, for lack of a better word, to whistle-blow, but the problem is that those people report to the deputy minister or the assistant deputy minister. That almost creates a conflict of interest. One of the things you read is that their role is not to protect the whistle-blower but rather to clean up the mess before it gets out of control.

What I've been asking, and maybe Mr. Drouin was asking questions about it too, is whether those people inside the department should be embedded in the department but be completely independent of the department and reporting to an outside agency, whether it's an ombudsman, the Auditor General's office, or to PSIC itself. What are your thoughts on that, please?

[Prof. A.J. Brown]

Certainly the internal audit unit or the internal ethics unit should be functioning with a level of independence from line management, anyway, as part of their job. They won't ever function totally independently of the agency's interest; they still have to answer to the minister or to the head of the department. I forget your structure there or title of the head of a department.

But what is crucial is that there be a mandatory reporting relationship with the oversight agency, with the Integrity Commissioner or whoever it is.

[Kelly McCauley, Conservative, Edmonton West, AB]

And by that, do you mean on reporting...?

[Prof. A.J. Brown]

Basically, it's just so that the Integrity Commissioner knows what's going on. Very often, all that's needed for an agency to resolve that conflict of interest, to a large degree, and to realize that they can and should protect the whistle-blower is to know that somebody else is looking over their shoulder and that it will be known how they handle this situation. Typically, agencies handle things quite differently if they know that's the case, and that in specific situations....

Sorry.

[Kelly McCauley, Conservative, Edmonton West, AB]

I appreciate that. Our current system is set up so there is a general report once a year, but it's not specific. There is no real follow-up, so we have some work to do on that.

I want to touch on your views on anonymous reporting, protecting the confidence of the whistle-blower, and then I'll ask you to give me a couple of the top ideas you think we need to follow up on.

Some countries do it and others do not, so I'd like to hear your opinion on it and how best to implement that, because we have a very strong culture of fear of retaliation among the people coming forward. I'm wondering if having this would allow more people to come forward, or strengthen their confidence that they can come forward and report issues.

[Prof. A.J. Brown]

It's a very basic issue and it should be there. All the legislation needs to do is to provide that person with protections that will apply even if the person doesn't identify themself. The presumption there, which can be made explicit, is that if they are later identified, then the protections will apply to them and they can avail themselves of the protection.

It's absolutely vital not to encourage anonymous reporting, because it will encourage confidential reporting and, typically, people will then approach a disclosure channel anonymously in the third instance. But when it's explained to them what the process is, they will reveal their identity to the appropriate people.

[Kelly McCauley, Conservative, Edmonton West, AB]

In my final three minutes, I'm wondering if you break out quick bullet points or ideas of where we should focus and what we should concentrate on in changing our current system and amendments?

Do you have any top-of-mind suggestions?

[Prof. A.J. Brown]

I think I said it last time that I would go back to square one in rethinking the legislation in its basic elements and how you implement it, because you have so many problems throughout the legislation and throughout the system.

Overall, I think the crucial thing is to be clear on whether the Integrity Commissioner is there to protect whistle-blowers or to investigate disclosures, and to properly embed the whistle-blower protection regime, both in agency governance and the integrity systems of the agencies and the departments, and also in the system as a whole so that it doesn't just rely on the Integrity Commissioner and the Auditor General. Any of the investigative agencies that operate throughout the Canadian public sector have a role in this legislation. You shouldn't put all your eggs in one basket with one Integrity Commissioner to try to handle everything, because it simply won't work.

[Kelly McCauley, Conservative, Edmonton West, AB]

It's not working.

We mentioned earlier that we have a culture issue within our public service. There's a fear of coming forward, one that continues from the last government and hasn't changed over the years.

What's the best thing we can do moving forward to help create a culture without the the fear of whistle-blowing? Here I refer not just to the fear of reprisal, but also to the need to encourage people to come forward to do the right thing when they see waste and corruption.

[Prof. A.J. Brown]

I think you identified the departments that are already doing it better than others. Even if no one is doing it very well, some departments will be doing it better than others, and you can use them as demonstration cases for how a healthy culture of disclosure can be created.

My impression is that you'll find it in the departments rather than through the Integrity Commissioner's office, because of the track record of how difficult it's been and how poorly designed the system has been, frankly.

[The Vice-Chair, Liberal, Yasmin Ratansi]

You have 45 seconds if you want to use it.

[Kelly McCauley, Conservative, Edmonton West, AB]

Very quickly, in the mandatory reporting in Australia, is a file opened on every whistle-blower who comes forward? Is your version of the Integrity Commissioner aware of that?

[Prof. A.J. Brown]

It varies very much from state to state and among the different public sector jurisdictions. Most of the jurisdictions are moving toward more real time disclosure, more continuous disclosure at some level. So at some level every disclosure that falls within the legislation gets notified to the oversight agency, so they can at least monitor and audit what happened.

[Kelly McCauley, Conservative, Edmonton West, AB]

Would you make that a recommendation for us?