Government Operations Committee on April 3rd, 2017

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

Finally, Professor Brown, I have a question with regard to the notion of confidentiality and the protection of all of the information. In Canada, typically when there is some type of state investigation into conduct, we are of the view that the fruits of the investigation in the possession of the crown are not the property of the crown for use in securing a conviction, but rather the property of the public to ensure that justice is done. I wonder whether or not the fruits of these investigations should be maintained as so confidential. How is the public interest served by these absolute rules of confidentiality found in various Australian legislation?

[The Vice-Chair, Liberal, Yasmin Ratansi]

A very brief answer, please.

[Prof. A.J. Brown]

I think the protections and confidentiality in the Australian legislation are very often aimed at the integrity of the process, both the integrity of the investigation and the protection process. They're not intended to limit what should be disclosed publicly as a result of an investigation where there's a public interest in that. Also, it comes back to the oversight agencies having both the power and the responsibility in the role of publishing investigation outcomes in due course.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

Mr. McCauley, you have five minutes.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thank you.

Professor, I'm not sure if you aware of the Government Accountability Project by one of your, I guess, whistle-blowing colleagues, Tom Devine. He he writes about “'no loopholes' protection for all citizens with disclosures relevant to the public service mission”.

We've heard from various witnesses that one of our weaknesses is that we don't protect people outside the public service, either retired public servants or contractors. I'd love to hear some of your thoughts on how we can protect contractors dealing with our government, those who blow the whistle on waste, wrongdoing, etc. How do we protect their employees, but also how do we protect the contractors and their businesses so that they're not blackballed and driven out of business?

[Prof. A.J. Brown]

In the Australian legislation, there's been a strong trend basically to just treat contractors and the employees of contractors exactly the same as if they were public employees. It is similar with volunteers or interns—basically people within that workplace.

Many of the regimes cover former employees, although there's a sensible move to put a limitation on that, to restrict it to a disclosure that's been made within 12 months or 24 months of leaving the public service, rather than years later. I think that's a relatively simple change that the committee can recommend to expand the scope of whistle-blower protection via that “no loophole” basis.

[Kelly McCauley, Conservative, Edmonton West, AB]

Do you have any thoughts or ideas on how any other countries might be doing it a bit better than Australia—ways that we should copy—or do you think it's a simple matter of amending the current legislation to extend protection to people dealing with or doing business with the government?

[Prof. A.J. Brown]

I think it is a very simple process on that issue. Some of the Australian regimes do extend whistle-blower protection to any person who discloses wrongdoing, including any member of the public, or any ratepayer or taxpayer. That becomes much more problematic because it's very hard for agencies to know how they are supposed to implement that effectively, and particularly to protect those people in situations where very often they don't need any protection anyway. It sort of confuses the scheme.

I think it's important to draw a very clear line between who a whistle-blower is—as in, people who need protection because they are inside or have that kind of employment relationship with the agency—and other citizens, clients, or customers who might need some legal protections if they make disclosures in other ways, but who are not actually whistle-blowers. I think it's important for the committee and the government to have a very clear idea of that dividing line in order to manage what's on either side of that line, rather than assuming it's all one type of disclosure and one type of protection responsibilities.

[Kelly McCauley, Conservative, Edmonton West, AB]

Professor Brown, we've heard a lot of very valid criticism of our current system: we don't provide enough funds for the legal fees of whistle-blowers who are experiencing reprisals, or others. Do you have any quick thoughts within about 45 seconds? I think we provide $3,000 for legal fees. What are your thoughts on best practices? Is Australia doing it right in that fashion, and could we just copy it?

[Prof. A.J. Brown]

I don't think Australia is doing it right in that fashion. We don't have a statutory entitlement to legal fees or legal aid the way that you have.

[Kelly McCauley, Conservative, Edmonton West, AB]

Sorry, Professor Brown, do you have any thoughts of who is doing it best then?

[Prof. A.J. Brown]

As far as I'm aware, the entitlement to legal aid that's in your legislation is quite a good precedent. Just the fact that it's in there is one of the things you might try to preserve.

[Kelly McCauley, Conservative, Edmonton West, AB]

And maybe top up.

[Prof. A.J. Brown]

In terms of having a clear legal aid fund that's available, I'm not aware of any country that has a strong legal aid support in place for whistle-blowers. I think you can build from your existing provisions to develop that to be more effective and, possibly, to be the national best practice.

[Kelly McCauley, Conservative, Edmonton West, AB]

Wonderful! Thank you again for all your time and efforts.

[The Vice-Chair, Liberal, Yasmin Ratansi]

We'll go to Ms. Ludwig for five minutes. Welcome to the committee.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you, I'm very pleased to be here.

Thank you, Professor, for your comments. My questions might be a little different. I'm sitting in this committee for the first time. One of the areas that I'm particularly interested in is research. With your experience with the law in Australia, is there a standardized method for data collection and reporting for found and unfounded cases? Would you be able to comment on that?

[Prof. A.J. Brown]

Certainly. In terms of the oversight agencies and their collection of statistics, because there are subtle differences between every jurisdiction, there are subtle differences in the statistics collection. They're all tailored to slightly different systems. There are some broad patterns that can be observed across the different jurisdictions, but it's not directly comparable data. It does let you identify when there's a clear under-reporting problem in some jurisdictions, for example. Generally speaking, those statistics confirm the value of disclosures, that there are reasonable substantiation rights, for example, with disclosures.

There's a much broader problem in the research that I'm involved in, which is why we have the participation of so many of the oversight agencies and government regulators in our large-scale collaborative research. That research is aimed at getting a handle on what is making a difference to the handling of cases within agencies on a much broader basis. Certainly what we're doing at the moment is to develop a more systematic research method that can apply across any organization and any jurisdiction, public sector or private sector. The fundamental dynamics of encouraging disclosures and measuring them properly are very similar in terms of the management dynamics and the relationships between internal and external actors. That's been a research need that's been identified, which we're currently addressing with research methods that enable us to do that through research in any government, jurisdiction, and organization and link it all together.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you very much.

Just pushing that a little bit further and listening to my colleagues' questions and your very detailed responses this afternoon, I'm wondering, within your method of data collection and reporting, if you're also looking at intersectionality of the cases that come forward in terms of diversity. It could be gender or all sorts of different variables, and if at that level, is it looked at across the different departments?

[Prof. A.J. Brown]

I don't think it's looked at systematically by government in analyzing trends. It's certainly looked at by researchers and has been over a long period of time—looking at gender for example. The seniority of people is considered. What enables some whistle-blowers to survive in situations where others don't? Their employment basis, seniority, and level of experience are clearly factors. Gender is sometimes a factor. That's part of the purpose of the research that many of us are involved in, rather than necessarily currently a direct focus in the statistics that are collected officially by the agencies. Definitely one of the reasons why the oversight agencies invest in our research process is to find out that sort of information. Where should the efforts be targeted? Who's most at risk? What causes those risks and how can those risks be responded to most effectively?

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you. I think I have time for one more question.

Within that and in looking at the longitudinal issue here, for those who come forward and report an issue—essentially the whistle-blower—is there any research or documentation that has looked at the outcomes of that whistle-blowing over a period of time? Also, are there any changes within the employment situation in the public service of those over a period of time?

[Prof. A.J. Brown]

There's been very little because it's very hard to do, to track people effectively over any long period of time. Some jurisdictions and organizations claim that they do follow up, but very often those claims aren't really very reliable.

The New South Wales police, many years ago now, did quite a systematic study of the people who were supported through their internal witness support program, police who had made disclosures about other police, and of how their welfare panned out over a period of time as compared to other groups within the police service. It certainly can be done, and it should be done, but apart from that study, there haven't been many substantial studies like it that I'm aware of.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We go to the last round, with three minutes for Mr. Weir.

If we have time, if somebody else wants to ask questions, would you please raise your hand so we can give that time to you? Thank you.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks very much.

Professor Brown, a previous witness, Mr. Conacher from Democracy Watch, made a written submission that included the suggestion of a minimum fine of $50,000 for retaliation against whistle-blowers and a maximum fine of up $200,000.

The Canadian dollar is approximately on par with the Australian dollar, so I wonder if you could give us a sense of how that idea fits in with Australian and international best practice.

[Prof. A.J. Brown]

Yes, certainly.

I don't know where you would set the penalties for a criminal offence of reprisal in Canada, other than probably the appropriate benchmarks of looking at offences relating to perverting the course of justice, jury tampering, and witness intimidation in a legal proceeding. That's really the issue here. That's what whistle-blowing reprisals are about. They're about interfering with the course of justice, so that's where I would look for commensurate offences and commensurate penalties, whatever that [Technical difficulty--Editor].