Evidence of meeting #82 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
Liberal
Nick Whalen Liberal St. John's East, NL
There already exists a higher standard, so it doesn't need them. Isn't that right?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Yes, and the idea is to protect as many people as possible from reprisals, which is a different subject from the actual merit of their wrongdoing, their disclosure. Some people can be mistaken on the facts. Some people may think there's wrongdoing when there isn't. Nonetheless, we want to protect them. The idea is to speak truth to power and for us to play a role in that approach.
I'm not going to read the factors that we've put together for a serious breach of a code of conduct, but suffice it to say that it includes the full gamut. It can be a one-time serious breach. It can be multiple little breaches. It can be conflicts of interest, and we've seen that in some our case reports. It can be ignoring policies. The behavioural issue is becoming prominent. We've seen it in some of our case reports. We are certainly receiving a fair number of allegations that concern bad behaviour at work by senior people.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
As in our case report on the Public Health Agency of Canada, it's physical or verbal displays of anger, bullying, asking employees to stay late—
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
Why doesn't it go to the labour relations board or to their unions? Why does it come to you?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
When it comes to disclosures of wrongdoing, in some instances, using the commissioner's discretion...and we'll talk about the discretionary factors under subsection 24(1) of the act. At the admissibility analysis stage of a disclosure—again, I'm talking about a disclosure, not a reprisal complaint—if a person is presenting to us a single situation of harassment, such as “I am being harassed in this fashion by my supervisor”, under the discretion of the commissioner, fairly often we say they should file a complaint under the harassment policy, first of all.
Sometimes it's a one-on-one type of situation. It's a “he said, she said” type of situation. We conduct confidential investigations. It's a little difficult. We don't conduct harassment investigations and we try to pass that on to our staff.
The distinction between a situation such as at the Public Health Agency of Canada, where multiple employees were affected, and a person's individual harassment situation is that we are not there to substitute ourselves for the internal harassment investigation process. That's where it belongs.
A person who feels harassed should, ideally, exercise their recourse under the harassment policy and try to get that resolved. As we know, the harassment policy involves early mediation. It involves an opportunity for the parties to speak. We don't conduct investigations in that fashion. We conduct confidential investigations into wrongdoing.
What we do accept for investigation and what we've pretty much always accepted for investigation are the systemic situations of harassment. When a senior-level person is bullying an entire unit or office, that is wrongdoing as a potential case of gross mismanagement or a potential serious breach of a code of conduct.
That doesn't mean that individuals who are affected within the office cannot also have another recourse, but we would look at the systemic issue.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Mr. Radford, you mentioned if an individual comes to your department with an individual case of harassment, you advise them to go back to follow up with a proper route. If they feel there's reprisal after that intervention in the department, you will step in then in the best—
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Yes.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Perfect. But individually, it's worked out through the department's harassment process.
Director of Operations, Office of the Public Sector Integrity Commissioner of Canada
Using the well-known mechanism provides them with the protection of the act. For them, for the disclosure to come forward, and where the commissioner's decision is not to investigate, because it would be better dealt with internally....
Conservative
Kelly McCauley Conservative Edmonton West, AB
Do you keep statistics on how many will come forward for those items that you advise them to go back and seek?
Director of Operations, Office of the Public Sector Integrity Commissioner of Canada
We have statistics on how many times the commissioner uses paragraph 24(1)(f), which is having a valid reason not to investigate. Yes, we do. The statistics on this is that 47% of the cases where the commissioner chose not to investigate is due to that paragraph.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Do you keep a breakdown of those 47%, and for what reason...?
Director of Operations, Office of the Public Sector Integrity Commissioner of Canada
A breakdown of each one of the different...? No.
We have it under each one of the different reasons that it is not sufficiently important or has been adequately dealt with. For a decision-making process, we have statistics on that, yes. Within paragraph 24(1)(f), we do not at this time.
Conservative
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
Thank you, Chair.
I am a little confused. I guess we've been looking at too many laws and listening to too many expert witnesses, but what's the difference in our law? Is there a fine line that's drawn between “protected disclosure” and “public disclosure”?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Yes.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
Okay, perhaps you could explain. I've gone to page 13, your slide 13, which talks about the definition of “protected disclosure” and then it says that public disclosures to the media are permitted. How does the person get protected if it's a wrongdoer and he or she gets frustrated and goes to the media?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Let me address that. The definition of protected disclosures is at slide 13, as you've indicated. A form of protected disclosure, but a form that is quite qualified, is a disclosure that is made to the media. Disclosures to the media or to another public entity other than the four that are mentioned at the top of the page...and I'll explain those in a second.
You would only be protected under this act from reprisals if you go to the media and can demonstrate—and the burden is on the public servant—that there was no sufficient time to make an internal disclosure or to disclose to PSAC.
The other criteria is that it must constitute a serious offence under an act of Parliament or a legislature where it constitutes an imminent risk of substantial and specific danger to life, health, and safety.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
What do you mean by sufficient time? Is there risk involved? How do I prove to somebody—
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
It is a combination of all those things.
For example, all of the criteria must be met, so if there is not sufficient time to make the disclosure and if, in addition to that, it is a serious offence or an imminent risk, the person who goes to the media would be protected.
The person could then come to our office and say, “Look, I disclosed to the media because it was on a Friday night. My supervisors were away. I knew of a situation that could cause a train derailment. I knew of a situation that could be very serious.”
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
It is unlikely, sir. Section 16 of the act is what speaks of media disclosures. It codifies what existed in common law by the Supreme Court of Canada from the decision of Fraser and other decisions, before the PSDPA came into effect.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
I just want to say that it's very subjective. As Mr. McCauley says, it's not likely to happen.
Are there a number of days that...? Suppose I saw some wrongdoing. What is my time lapse? What is my protected environment? What are the number of days needed to say, “Within five days nobody worked on it so you're protected”?
It's very confusing, you know. You would hate to be a whistle-blower.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
I think that if you are a whistle-blower and you blow the whistle to the media, you are facing hardship. It brings you back to the situation before this law was created where people had to invoke whistle-blowing as part of their defence. They had been fired. They had been disciplined, and they said, “Wait a minute. I breached my duty of loyalty or of confidentiality to my employer because this was so important that I needed to speak publicly about it.”
There is no doubt that the PSDPA restricts that kind of whistle-blowing. The factors at 16 are strict. I do not have an immediate definition for “imminent” other than what we all understand imminent to mean. What is a serious offence? I think all offences are serious, but in the act, Parliament nonetheless chose to certainly curtail the protection that comes from whistle-blowing to the media. There's no doubt about that.
