Government Operations Committee on April 6th, 2017

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

Thank you, Mr. Chair.

My question deals with protecting the whistleblowers’ anonymity. Witnesses tell us that it is important to protect the names of the people making disclosures, but there is more to it than that.

I assume that, at some point, those making disclosures have tried to solve situations internally. However, if a problem is not solved, they decide to contact your office. It would be quite easy for an employer to know who disclosed the information because the employee in question has already tried to make him or her aware of the situation.

How do you go about protecting the confidentiality of the disclosure? When you communicate with disclosers, do you tell them that you are going to try to protect their anonymity to the extent possible—to use your words—because of the way things are, it is possible that their names will become known? Is that information communicated to whistleblowers?

[Brian Radford]

Yes.

First of all, discussions take place between the person making the disclosure, the whistleblower, and our office, either with Mr. Lampron or with our analysts. Our recommendation to our analysts and investigators is to take care not to promise absolute confidentiality. Absolute confidentiality does not exist. If there is a subsequent criminal investigation, subpoenas can be issued. If a judicial review is under way, confidentiality is subject to all other legislation.

Also, and this is important, confidentiality is subject to procedural fairness and natural justice. If the allegation is that someone banged their fist on the table and scared an employee during a meeting, in a way that was totally out of control, it may be impossible for us to fulfill our requirements for procedural fairness completely and paint a generic picture for the respondent, the person against whom the allegation is made. On some occasions, we have no other choice but to ask that person whether, on such and such a date, at such and such a meeting, they threatened such and such a person.

We treat everyone as if they were witnesses. In other words, we do not mention who the discloser is. That person is therefore a witness. There may be particular cases when we have no other choice but to say to someone, for example, that their head of finance told us about something and to ask them how they respond to it. So clearly, sometimes, we have no other choice but to reveal the identity of a source or a witness.

No disclosure that comes to us is not subject to detailed analysis on the merits before an investigation is launched. If the commissioner's decision is to not launch an investigation, no one will know. We do not advise the department and we do not obtain information from it in order to determine whether or not there is an investigation. So that is done confidentially. When an investigation is launched, we clearly do not identify the person making the disclosure in our notice of investigation. When we meet with witnesses and with disclosers, we have to be candid and tell them that we are going to do everything we can to protect their identity.

Mr. Drouin, you are perfectly right to say that situations have arisen in the past in some departments where workplaces are very small. In those cases, people know who made the disclosure. Unfortunately, those situations exist. Fortunately, there is protection against reprisals. Whether or not it is the best protection remains to be seen, but, fortunately, we do have that ability to protect witnesses and disclosers.

Let me go back to a comment made at the beginning of the meeting. The deputy head in a department has very specific responsibilities to protect the identity of witnesses and to establish a system that protects them to the extent possible. In most cases, identity can indeed be protected. There are also whistleblowers who are quite talkative. Some situations sometimes involve unions and, at other times, a group. We also have situations where there is a conflict in a department. Some are then more talkative than others. However, you are perfectly right, absolute confidentiality does not exist in the system.

Mr. Lampron, do you want to add anything?

[Raynald Lampron]

I take a lot of calls and I provide a lot of information to potential whistleblowers. In my experience, people come to us directly. They do not go to a department first, they come to us simply because they trust the Office of the Commissioner. That has been my experience over the last four years and it stems from the fact that we are becoming more and more known.

After a report to Parliament, we often see an increase in the number of calls from people communicating with us to obtain information on how to make a disclosure. They turn to the Office of the Commissioner directly. So it is also a way for them to protect their identities.

As my colleague Mr. Radford was saying, when we conduct our interviews and speak to people, we always tell them that we will protect their identity to the extent that the law allows. As I was saying earlier, we have to determine the places to hold the interviews, their duration and the time of day when they will take place—which the witnesses have the right to choose. In our reports, we will protect their identities to the extent we can by leaving out any reference to whether there were four witnesses, two witnesses or a single witness. It is all about protecting identities. In the case of fraud, it is not necessary to reveal the identity of an individual reporting two incorrect claims, for example. Our focus is on the claims.

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

My other question is about organizational culture and about the role of your office in promoting it. A few months ago, Mr. Friday talked about the training you provide. He talked about training for employees on their rights and on the way to turn to your office. Do you provide training to department heads to make sure that you are promoting an environment like that?

Basically, your office is the office of last resort when things are going very badly. Normally, we want things to be settled internally as much as possible. Do you play a role in that with department heads?

[Brian Radford]

To be clear, we do not provide training directly. Our commissioner's office is committed to meet as often as possible with the greatest possible number of public servants and managers. In the first document we distributed to the committee, we list the number of contacts that we make as well as the number of presentations. You can find that in tab 3. It shows the number of people with whom we meet. We do not provide training.

At the beginning of our mandate, from 2007 to 2010, I and a colleague personally provided training to lawyers from the Department of Justice. That was in the first years when the act was in effect. We have gained a little more experience and have begun to conduct investigations. As you know, our commissioner's office has taken a little time to get going. When we began to conduct investigations, we spent some time considering the natural conflict that could be created. If we conduct investigations in one department, in our view, providing training carries with it the risk of placing ourselves into a certain position, when we do not want to do so. We want to allow ourselves the flexibility to determine whether we are going to launch an investigation or not in such and such a situation.

We came to the conclusion that, ideally, it would be up to the Treasury Board Secretariat to provide the training. That said, we once held a seminar with senior departmental officials. I believe that it was in 2010-2011, with Commissioner Mario Dion.

Our focus is the presentations. We give presentations to unions, groups, communities, like the finance officers for example, and also to senior officials. We have an advisory committee made up of 15 or 20 senior officials from different organizations. We meet with them about four times a year. We are on that committee and we exchange ideas with them. The senior officials' community is quite active. It is represented by a small group, a sample of all senior officials.

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

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Colleagues, before we go to our next questioner, I want to remind all colleagues that Mr. Radford and Mr. Lampron are with us until 10:15, so we have slightly over 15 minutes. We have three other colleagues who have questions. I'm not sure how close Mr. Radford is to completing his presentation, if it's close at all.

We'll try to get our questions in and then we'll wrap up.

Madam Ratansi, you're first up.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

You do not need to answer my question now, because I will collect my questions, give them to you, and then I'll let Mr. Whalen, who has the next questioner, speak.

We've been listening to a lot of witnesses who have made suggestions for changes. One of the changes they wanted was to deny the Public Service Integrity Commissioner the discretion to deny a complaint without investigation. Therefore, my question would be on empirical evidence. How many complaints has the Public Service Integrity Commissioner denied without an investigation?

The second thing that was suggested was that the Public Service Integrity Commissioner order or ask—they put down “order”—the CEO or department heads to take corrective action. Do you do that at the moment? If not, why not?

Mr. Whalen can take the next turn.

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

I'll wait for those two answers because they're similar to mine.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Okay. That's fine.

[Brian Radford]

We will distinguish between disclosures of wrongdoing and reprisal complaints.

Mr. Lampron, can you inform us of the statistics and the grounds for refusals of both reprisals and disclosures, please?

[Raynald Lampron]

In the case of disclosures, we investigate approximately 25% of the disclosures made to us.

To that effect, there are a number of discretions the commissioner has to refuse to move forward with investigations. Ten per cent of those are considered to have been adequately dealt with under another procedure established under an act of Parliament. For the disclosure is “not sufficiently important”, that's only 3%. For “the disclosure was not made in good faith”, we've never had any of those so there hasn't been a refusal based on that.

For “the length of time that has elapsed since the date when the subject-matter...arose is such that dealing with it would serve no useful purpose”, we had 2% of those, and many of those are simply predating the act. We haven't had one single refusal by the commissioner to move forward an investigation on that specific topic since 2013. The subject matter of the disclosure “results from a balanced and informed” policy is 1% of those that we refuse.

The greater portion, as I mentioned before, 47%, is that there's a “valid reason” not to deal with the disclosure. Within that, many of those are because they do not fall under the definition of wrongdoing under the act, or somebody comes to us and says that a member of Parliament has committed a wrongdoing. Our act does not extend to members of Parliament; therefore, we would refuse to move forward with that.

It could be the subject matter is already handled internally by another body. If somebody comes to us and says that they're being harassed at the office, and in the disclosure, also informed us that there is a harassment investigation being conducted currently, we would not move forward with that because it would be a duplication of process.

It could also be that the disclosure falls outside of the commissioner's jurisdiction under the act. If somebody comes to us and says that it's happening at the regional hospital, it could be a wrongdoing but we simply don't have jurisdiction. We have a lot of disclosures come to us that are, in fact, outside of our jurisdiction. To that effect, we've created a tool to help us move forward and inform the person as quickly as possible as to the fact that we do not have jurisdiction over the disclosure, so they should look at the others. Whenever possible, we try to inform them as to the mechanism in place or the body that could help them.

Finally, we've had a number come to us in which the allegations are based on speculation or there's not a great deal of specific information. For example, somebody has heard that something was not working well, so they say that we should look into it. They believe something's not working, or they've been told by someone else that this may be happening. We do not launch fishing expeditions. That's why the team that works under me in analysis conducts thorough and complete reviews of the information we have been provided in order to give the commissioner the best advice on whether or not he should launch an investigation.

I'd like to make it very clear that when we choose not to launch an investigation, the explanation letter sent to the discloser is very complete, thorough, and explains to the discloser why the commissioner has made the decision he has. It's not simply, “No, but thank you for playing.” It is a letter that says he is choosing not to investigate for the following reason, which is identified to the person. To that effect, we've had requests for reconsideration that have come forward to us, and once again, we go through a secondary review process of the information that is now provided to see if there's a reason the commissioner should change his decision. If we choose not to, another explanation letter is sent telling the individual why, after the reconsideration, the commissioner's decision has not changed.

We do not leave people in the dark. We actually, very thoroughly, explain to them why the decision made by the commissioner has been made. We give them the reasons for his decision. To date, we have had some people who are not pleased with the decision, but they have actually thanked us for explaining why we cannot move forward.

[Brian Radford]

With respect to reprisal complaints, that's a very different world again. I think the courts have recognized that the commissioner enjoys quite a lot of discretion, and deference has been given to the commissioner by the courts in matters of disclosures of wrongdoing. Not so much deference has been given to the commissioner on matters of reprisal complaints.

Like I said earlier, in 2014, the Federal Court of Appeal said that reprisal complaints should be investigated, unless it is “plain and obvious” that there's a valid reason not to do so. We have been following the Federal Court of Appeal in this regard since 2014. We welcome that kind of instruction from the Federal Court of Appeal.

Mr. Lampron, what is the percentage of reprisal complaints we investigate?

[Raynald Lampron]

The percentage falls within roughly 20% to 25% again. Once again, when we go through the process, the analyst team looks at all the information that is provided to us, and there are numerous reasons we would not move forward. Sometimes the person will tell us they have not made a protected disclosure and that they just feel a reprisal at work, which turns out sometimes to be harassment.

Before the end of this presentation, I would like to reserve a couple of minutes to speak about conciliation, which is one of the reasons we sometimes do not end up with a case in front of the tribunal. Within our act, there's an ability to offer conciliation when there is merit. A great number of persons have had a very good process and a very good solution to some of their situations.

[Brian Radford]

Finally—

[Yasmin Ratansi, Liberal, Don Valley East, ON]

I'm looking at the time and I think Mr. Whalen has questions. Why don't we give you the questions and you can submit written responses? Is that okay?

[The Chair, Conservative, Tom Lukiwski]

I was about to suggest the same thing to our colleagues here. We have only about 10 minutes left. If you have questions that could be answered in written form, you can certainly pose the questions now, verbally, if you wish, or you can write to Mr. Radford and Monsieur Lampron and ask for a written response.

Invoking the right of the chair, I have one question that I will give you verbally and ask you to please respond in written form, as it would help us in drafting the report. Where does it say in the act that the reprisal complaint that is made to the commissioner has to be related to a disclosure? If you can give that response to us in written form, I would appreciate that very much.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Don't forget my power question. You have the power to enforce somebody—

[The Chair, Conservative, Tom Lukiwski]

We have Mr. Whalen, Madam Shanahan, and perhaps Monsieur Ayoub again.

Colleagues, if you could pose the questions and receive them in written form, that would help us greatly.

Nick, go ahead.

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

This is going to be somewhat difficult, because the questions were interim.

First, what are your internal timelines for providing the first decision letter as to whether you're going to pursue a complaint? What are the timelines for providing a decision on an appeal, as to whether you're going to pursue a complaint if an appeal is sought? Also, what are your service levels on the overall investigation? A lot of foreign acts stipulate those within the legislation, but ours doesn't.

My second question relates to parallel investigations. Within the act it seems that exclusive jurisdiction is being given. What sections of the act should we be concerning ourselves with if we want to grant non-exclusive jurisdiction to PSIC in relation to investigations of complaints and their right to pursue parallel investigations? Are there some pitfalls that you want to point out in respect of those?

With respect to the definition of “wrongdoing”, we've heard from witnesses that gross mismanagement is too high a standard, that you guys should be allowed to investigate a negligence-level standard. How do you view that internally? What type of discretion do you have around determining whether something arises to the level of gross versus not, and have you ever denied an investigation on the basis that it was negligent but not grossly negligent in terms of the management?

On destruction of evidence, how does destruction of evidence fall within the definition of “wrongdoing”? In other jurisdictions, destruction of evidence is a separate ground and actually is a basis on which a disclosure to the public can be maintained. Presumably there's some way that's captured.

You'll see the blues and get all these questions in written form, so you don't have to scramble.

Within the definition of “protected disclosures”, we've heard some evidence around a duty to protect and support. Some of the evidence we've received with respect to a duty to protect and support was that the department that's engaged in the disclosure, or even the overall organization such as yours that supervises the regime, would make sure that people who are witnesses to wrongdoing are actually being protected in supporting you. It's like standing back and monitoring their mental health and the way they're being treated within the public service. Could that duty be inserted easily into the act, or would it be too complicated to add such a duty because it might interact with too many sections of the act? I'd like your views on it, as experts on the act.

I'm not sure where this next question will go, unfortunately, so I might have follow-up questions with respect to it. I want to understand from Mr. Lampron the difference between an investigation that would occur under this act and an investigation that would occur if someone just went directly to the RCMP with respect to any of the matters that they consider to be a sufficiently grave form of wrongdoing. It would seem to me that this act provides much more protection to that type of whistle-blower, yet I don't understand why that would be the case.

Don't we want to protect anyone who is bearing witness in the public interest to wrongdoing? I want to have your thoughts on that to further questions, but seeing as there is no time, maybe we will engage in some type of email chain on this.

[The Chair, Conservative, Tom Lukiwski]

We have Madam Shanahan, and then I'd like to give a couple of minutes to Monsieur Lampron, as he has requested to talk about the conciliation process.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Chair.

My question concerns the information that was given to us in the technical document we have received, on page 6, concerning identities involved in disclosures of wrongdoing. It is noted there that there have been some incongruities. In proportion to their representation in the public service there are fewer people from the national capital region who disclose, fewer women, fewer francophones, and so on.

I'd like you to address how Mr. Friday's recommendations—I'm sorry, I don't have them in front of me—would be appropriate in what I consider very important, which is widening that funnel of initial disclosures.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Before I go to Madam Ratansi, I would like again to advise colleagues that we have only a few moments left, which I wish to give to Monsieur Lampron to talk about the conciliation process.

Monsieur Lampron and Monsieur Radford, it would be greatly appreciated if you could submit the responses to these questions that you've just heard before the end of April, if possible. We're in a time crunch here, as we need to prepare a report. The quicker we can get your responses the easier it will be for us to incorporate them into our final report.

[Brian Radford]

Thank you for those questions, Mr. Chair. We will meet that commitment.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Madam Ratansi, you had a comment.