Government Operations Committee on April 4th, 2017

[Tom Devine]

Thank you.

Yes, the protection must extend beyond disclosures to supervisors or any specific channels. There's no one formula or recipe that fits all these situations. To make a responsible disclosure you need to do a lot of homework, talk with other potential witnesses, and do research.

Before you start making accusations, you need to give the system a chance to do the right thing, which means making those disclosures to your supervisor and upwards within the chain of command. The general principle is that you should have the freedom of expression to make that disclosure wherever it's necessary in order to make a difference in challenging the abuse of power or other misconduct.

Many of the laws say—

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

Sorry, Tom, I want to give other people a chance on this.

Are there any differentials between the public sector and the private sector with respect to this principle, yes or no?

[Tom Devine]

Not at all, sir. It doesn't matter whether the institution that betrays the public trust is public or private.

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

Thank you, Tom. I have to move to the next one.

John, can you give us the Irish perspective?

[John Devitt]

We know from survey data in the U.K., Ireland, and the U.S. that over 90% of workers will normally report inside their organization. As Tom said, people want to be given the opportunity to report through line management and through the relevant channels internally before they feel forced to go outside the organization.

In Ireland, a whistle-blower can go outside the organization in situations where it's considered to be reasonable, where they believe, for example, that they may suffer as a consequence from speaking up internally, or where that information may be covered up. They are afforded the opportunity to report to a member of the media or a member of Parliament. In situations where the information is related to serious wrongdoing, they will be protected when reporting it to a journalist.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

You have seven minutes, Mr. Clarke.

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

Thank you, Mr. Chair.

Greetings to everyone, no matter which time zone you are in.

Mr. Conacher, the committee has repeatedly heard from witnesses that the Office of the Public Sector Integrity Commissioner had committed wrongdoing. That made me curious, so I'd like to know what that wrongdoing was.

[Duff Conacher]

The explanation requires me to use a fair bit of technical jargon, so it will really put my French to the test.

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

This is the place to practise.

[Duff Conacher]

I think I'm going to switch to English.

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

Of course, no problem.

[Duff Conacher]

The wrongdoing with regard to the commissioner's office is historical. Christiane Ouimet was audited by the Auditor General as the first commissioner and was found, in more than 200 cases, to have essentially not investigated but rejected the whistle-blower's complaint.

Mario Dion was found by the Federal Court to have been negligent in a couple of cases. He also hid the identity of wrongdoers in some other cases by claiming that the Privacy Act required him to do so. It doesn't require the commissioner to hide the identity of any wrongdoers; it allows that disclosure completely. He also just did a paper audit of the more than 200 cases that Christiane Ouimet had left hanging, a very cursory audit, only pursued full reviews of about a quarter of them, and left the others sitting there.

We have about 150 cases that date back to Christiane Ouimet that still haven't been fully investigated and looked at by the commissioner's office. That's the wrongdoing, and the current commissioner was there for a lot of the time. That's why, again, I don't have much faith in him, and the next person to be appointed has to be appointed using the Ontario method. The politicians cannot be allowed to choose these people anymore.

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

Thank you very much.

Mr. Devine, you said that we should absolutely include the private sector in the law. I assume that's a fact in the United States. Can you just share with us how it works exactly, a whistle-blower law applied to the private sector?

[Tom Devine]

I'm not sure that I heard your question properly, sir, but that is the overwhelming rule, that the whistle-blower laws apply to public or private sectors. Some nations have them divided into different structures for the different contexts.

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

Technically speaking, how does it work in your country? How does it apply to the private sector? For instance, when it's in the public sector, we have those internal agencies in the departments. How does it work in the private sector?

[Tom Devine]

We have very similar rights for public or private sector, but yes, they are enforced through separate channels. Our labour department sponsors an administrative law process for informal investigations that can graduate into administrative due process hearings for private sector employees. If they don't get a timely decision, generally within 180 or 210 days from their administrative process, they can start fresh in federal court and have a jury trial to enforce their rights.

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

Someone in the private sector doesn't have to inform his or her superior. Am I understanding that correctly?

[Tom Devine]

That's absolutely right. There's no requirement to go through the chain of command for a private sector employee.

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

How is it in the public sector in the United States? Does the whistle-blower have to go through the chain of command?

[Tom Devine]

No, they don't. The reason is that, in many instances, there's a conflict of interest that means going through the chain of command is actually going to be obstructing justice, and you have to have the freedom to adopt those scenarios. The key challenge for us has been making sure that they have protection when they do go through the chain of command, because the instinct of over 90% of whistle-blowers is to follow the system, and oftentimes that can be quite treacherous.

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

Mr. Worth, you have put forward some amendments that, according to you, would be positive for the law. Are there any other changes that you haven't spoken about this morning that you would like to share with us concerning our specific law?

[Mark Worth]

I wanted to mention that according to the website of the commissioner, there have been 653 disclosures under the act in the past eight years. These might not have all been related to the disclosures, but there have been 215 reprisal complaints during that period. That's a ratio of 3:1. For every three disclosures that have been made, there has been one reprisal complaint. Whether or not they all came from the disclosures, it's not clear, but that's the percentage.

Of those 215 reprisal complaints, only six cases have gone to the point of maybe having a hearing at the tribunal. That's a percentage of 2.9%. In the U.K., in the 18 years that law has been in place, 18.7% of people filing a claim under their whistle-blower law have had a hearing. That means that six times more people in the U.K. have gone to hearing than in Canada. That's a very low percentage. I think we need to study the barriers to having a hearing.

I apologize for a mistake when I described the commission as being an executive branch. It's legislative. Court protection is not the best practice. You need to have an agency, like the gentleman from Democracy Watch says, like Bosnia has and many other countries do now. The executive branch agency has the power and in Bosnia, they do it in 30 days and emergency cases are processed in seven days to assess the retaliation and protect the person. John and Tom can testify that each day that goes by for the whistle-blower, they fall further and further into the hole of career assassination, character assassination, ostracizing, brutal harassment, and very bad conditions at work. The case that was on the schedule yesterday at the tribunal, the Chantal Dunn case. I don't even know if that case happened at the tribunal yesterday. That case is from 2012. That's atrocious. You can't wait four and a half years for a case.

[The Chair, Conservative, Tom Lukiwski]

I'll have to interrupt. I'm sorry—

[Mark Worth]

Please, let me finish.

In the U.K., the average case takes 20 months, so I think the big change you need to make is to get rid of this tribunal system completely, unless it's like an emergency backup in case the executive branch doesn't work, like the man from Democracy Watch said. You need to have a swift executive branch or administrative system to protect these people.

I look at whistle-blower protection—here's my last point—

[The Chair, Conservative, Tom Lukiwski]

Thank you, sir.

Mr. Worth, I'm sorry we're going to have to interrupt.