Thank you very much, Mr. Chair. It is our pleasure and an honour to be here this morning.
Thank you for accepting a technical briefing from our office. I am accompanied by Mr. Lampron, our director of operations. He oversees the admissibility analysis process as well as the investigations for disclosures and reprisal complaints. Mr. Lampron has over 20 years of experience as a military officer in the military police, he's been a senior investigator of the Conflict of Interest and Ethics Commissioner's office, and at NRCan, as well as the Bank of Canada.
As you have indicated, Mr. Chair, our presentation this morning is of a more technical nature. We welcome questions, of course. You do have a deck before you that is quite detailed. I don't intend to read every page of the deck. I'd rather speak to some key points. I think this is also an opportunity to speak to issues that have arisen before this committee and maybe bring you to specific provisions of the act that might address some of those issues that you've heard about from witnesses.
If we turn to pages 3 and 4 of the act, we will start with a bit of a historical perspective. The Public Servants Disclosure Protection Act that came into force on April 15, 2007, ultimately was the final version of the PSDPA but it was not the only version. There was an earlier bill that received royal assent in November 2005, yet it was never proclaimed into force at that time. There was an election and the PSDPA was subsequently amended by the Federal Accountability Act. The result is the act that we have before us today.
If you'll permit me, I'll speak of a few differences between the 2005 and 2007 versions, and the reason I'm doing that is that I believe it may help in your deliberations, especially on the issue of, for example, direct access to a tribunal, to the tribunal, or to another adjudicative body in matters of reprisal complaints.
One of the key distinctions or differences between the 2005 and and 2007 versions is that in 2005 reprisal complainants could access directly, at the time, the Public Service Labour Relations Board, if they were public servants, or the Canada Industrial Relations Board, if they were employees of crown corporations.
As you can see, there is a dramatic difference between the 2005 and 2007 versions. The 2007 version, our act, requires complaints be made to the commissioner's office, but the commissioner must decide within 15 calendar days whether to investigate a reprisal complaint, and then there must be an investigation. The law, the courts, inform us that investigations must be as thorough, neutral, and fair as possible, and as you can imagine those take a little bit of time. There must be an opportunity to comment on preliminary findings, etc.
There are advantages and disadvantages between direct access—whether it's to the current tribunal or another body—and an investigation. Without an investigation, the adjudicative body, the tribunal, would have presumably been seized with some 250 complaints, not all of which necessarily fall within the definition of a reprisal, not all of which necessarily fit within the jurisdiction of the act. The commissioner's office does an important screening function.
The commissioner's investigation does uncover evidence that all of the parties can use, in particular the complainant. The commissioner's office interviews witnesses, obtains documentary evidence, and that evidence forms part of the record before the tribunal.
In a sense, the complainant is not necessarily alone and facing their employer before the tribunal under the current regime. The commissioner is an independent party representing the public interest before the tribunal; however, as you can imagine, there are some cases where, if we believe that a reprisal has occurred, the interests of the complainant may align themselves with the public interest in denouncing and addressing reprisals.
That said, clearly, a two-tier regime with an investigation followed by a full tribunal hearing takes much longer. Also, in a sense, it does preclude complainants from having control over their complaint. Their complaints are submitted to us and we must investigate. We must fulfill our statutory duty to investigate. Accordingly, only a small number of complaints end up before the tribunal.
The 2007 regime, as highlighted on page 3 of your deck, created two very distinct regimes.
We investigate disclosures of wrongdoing, and we have filed 13 case reports before Parliament on such wrongdoing. Of the 13 Federal Court and Federal Court of Appeal decisions that have dealt with PSIC's decisions—judicial reviews—we have never had a disclosure of wrongdoing, either in an investigation or in an inadmissibility analysis decision made by the commissioner, overturned.
We have had four decisions of the commissioner overturned by either the Federal Court or the Federal Court of Appeal, but they have all been in reprisals. I say this because, clearly and admittedly, reprisals are difficult. They are a personal recourse belonging to a person. We are tasked with investigating that person's claim that they suffered reprisals, but we must remember that it is their situation. It is their life that is affected. Currently, the act imposes on the commissioner an important screening function. The results, as we know, are few reprisal complaints before the tribunal.
That said, cases before the courts—the four decisions of the courts that have overturned decisions of the commissioner—have greatly assisted us and informed the commissioner in our work.
In 2014, the Federal Court of Appeal indicated that we must look at reprisal complaints from the perspective of “plain and obvious”. A reprisal complaint must be investigated unless it is plain and obvious that it doesn't fall within our jurisdiction: that it doesn't meet the definition at all of a protected disclosure, that no protected disclosure has been made, or that the person is not part of the federal public sector, for example.
The recent case of Ms. Therrien further informs our decision-making process. There is a restriction under subsection 19.3(2) of the act—and my colleague will speak about that a little later—which specifically reads that the commissioner cannot deal with a reprisal complaint if its “subject-matter” is being dealt with by another body or person acting under another act of Parliament or a collective agreement.
For us, until the Federal Court of Appeal decision of January, “subject-matter” meant, for example, that if it is a termination of employment, are you contesting the termination of employment by way of a grievance? Are you contesting your suspension by way of another process before another body or by way of a grievance? The Federal Court of Appeal instructs us in the case of Ms. Therrien that “subject-matter” includes the merits of the complaint. This is new. This is new law, and we will, of course, follow the Federal Court of Appeal decision in this matter.
All of this is to say that reprisal complaints fall within a fairly complex regime where people exercise a right.
It is a remedial statute. It must be given broad, liberal interpretation in order to bring it to life. The screening function has its advantages and disadvantages. That is my bottom line. It is interesting that in 2005 the version of the act that received royal assent did not call for commissioner's investigations.
There are other important distinctions as well in the 2005 regime. In 2005 the commissioner could investigate reprisals as wrongdoings. A person could exercise their recourse, and at the same time, the commissioner could investigate a reprisal as a matter of wrongdoing. It strikes me that it might be a little difficult to achieve; nonetheless, that's what the 2005 PSDPA called for.
There was at the time no specialized tribunal for reprisals. As you know, we now have a specialized tribunal comprised of Federal Court judges and superior court judges. They are convened only when a case is referred to the tribunal.
In 2005 public servants were expected to first exhaust internal avenues before making a protected disclosure. They had to either go to their senior officer or a supervisor, or they had to satisfy PSIC that the matter was not appropriate to be dealt with internally, or that it had been reported internally and they were not satisfied with the results. Having exhausted the internal avenue, they could then go to PSIC. Frankly, we believe the current version offers far greater protection.
We will get to the definition of what a protected disclosure is because that is fundamental.
While the reprisal regime and the disclosure regime are quite distinct, where they align themselves is that all persons who have made a protected disclosure are protected, whether or not their wrongdoing is founded, whether or not their claim of wrongdoing even has merit. It is the act of coming forward, speaking truth to power, either under this act or under other procedures, that affords them protection. The ability to go directly to PSIC with the wrongdoing, I think, is an important one.
At the time in 2005, there was no opportunity for case reports on founded wrongdoing to go to Parliament. The commissioner reported to the chief executives. There was, of course, the annual report. There was, of course, the opportunity for special reports to Parliament, but there was not this automatic case report to Parliament.
There was no access to funding for legal advice. Currently under the act, under subsection 25.1, all persons who are involved in proceedings under the act—disclosures or reprisal complaints—are eligible to receive $1,500 or $3,000. One of the recommendations of the commissioner is to give us flexibility in those amounts.
These are really intended as introductory comments, but I think they are nonetheless important as we look at this legislation to understand these two distinct regimes.
In a judicial review involving the Attorney General for the Royal Canadian Mounted Police, versus PSIC, where the RCMP contested the findings of our disclosure investigation and our finding of wrongdoing, Madam Justice Elliott, in upholding the decision of the commissioner, wrote that the public interest importance of the act means that the act is there to address:
...wrongdoings of an order of magnitude that could shake public confidence if not reported and corrected. When the Commissioner is “dealing with” an allegation of wrongdoing, it is something that, if proven, involves a serious threat to the integrity of the public service.
We believe that the 13 case reports on wrongdoing that we've filed represent such serious issues. Admittedly, dealing with reprisal complaints has proven a little more difficult for us.
You have heard from the Treasury Board that chief executives have very important responsibilities under this act, and that is part of the culture shift that is also needed. There is a genuine fear of reprisal, and understandably so. To jeopardize one's career is daunting.
Chief executives and Treasury Board have important responsibilities, and we have important responsibilities to raise awareness about this act. Section 4 of the act specifically calls on Treasury Board to raise awareness about the act. Sections 10 and 11 of the act speak of the important responsibilities of chief executives to ensure confidentiality and to establish a disclosure regime within their department.
On this note, especially on confidentiality, my colleague Mr. Lampron will address confidentiality measures in the act.