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.
Conservative
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Thank you, Mr. Chair.
Gentlemen, the presentation is not finished, but I have a number of questions to ask and comments to make. I do not want to put words in your mouth, I just want to know how you see things. I looked a bit further into the presentation and I saw that there are a lot of restrictions, a lot of structure. Structure is good, but when it really complicates a situation, one feels that one is in a maze with no way out.
A number of points were raised in previous testimony, particularly with regard to section 34. It is on page 14 of your document. When an investigation requires the commissioner to obtain information from sources outside the public sector, he or she must cease that part of the investigation.
I am putting myself in a whistleblower's shoes. They are expected to disclose information and they are told that they are protected. But they are in a no-win situation if they are not directed, accompanied and counselled from the outset.
Explain to me how your group manages to reassure people like that and to get others to do the work for which you are responsible.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Before I give the floor to my colleague, Mr. Lampron, let me make it clear that section 34 is the subject of one of the commissioner's recommendations. In recent years, we have tried to stretch that elastic a little. We ask former public servants to talk to us anyway. When we are dealing with a contractor or a consultant who deals with the government, we expand the definition a little in order to obtain information. Section 34 is certainly an obstacle.
I will let my colleague comment now.
Director of Operations, Office of the Public Sector Integrity Commissioner of Canada
In terms of section 34, if people are not part of the public service, we have no power to require them to provide us with documents or testimony in an investigation. However, we ask them if they can co-operate with us by providing documents voluntarily. That is the approach we have taken in order to be able to continue the investigation when evidence lies outside the public sector.
Up until now, that has worked very well. People have co-operated in cases connected to the public service. However, if there is no co-operation, or if, when evidence lies outside the public sector, people do not provide us with the information, we are at a dead end. That has happened to us before.
The act allows us to send the document to police authorities or to a provincial attorney general so that the investigation can continue. At that point, we send the information and the necessary evidence to the new body handling the investigation thereafter, and the investigation continues.
When there is a lack of co-operation on the part of people outside the public service, an obstacle or interruption does not mean that the investigation comes to an end. In fact, if a police force such as the RCMP agrees to continue the investigation, it continues and the person is advised.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
One of the commissioner's recommendations is to get rid of section 34.
There was a second part to your question. I would like to discuss it.
Liberal
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Earlier, I talked about protected disclosure and the way in which we define it. As much as possible, we try to help people who have made a protected disclosure by using the broadest possible definition of “protected disclosure”.
On page 13 of the document, we say that a protected disclosure is one made in accordance with the act. In other words, to a supervisor, to their organization's senior officer, or directly to us. One of the commissioner's recommendations is to broaden what is understood by “supervisor”.
We give the benefit of the doubt to complainants when we are dealing with complaints about reprisals. For example, if someone does not use the form provided for the purpose by the department, we consider that the fact of their communicating wrongdoing to us verbally is sufficient to protect them.
With a parliamentary procedure, people who appear before you, as we are doing today, are protected. Under another federal act, for example if someone has had problems after submitting a complaint to the Privacy Commissioner, we consider it protected disclosure too. People do not necessarily have to turn to the Privacy Commissioner if they want to complain about that situation. They can come to us and file a complaint about the reprisals.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Excuse me, but subsection 23(1) states that the commissioner cannot deal with a disclosure when it involves another federal act. The person is protected, agreed, but the role of the commissioner, of your organization, stops there.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
That is the difference between “disclosure” and “reprisals”. Subsection 23(1) applies to disclosure.
Take the example of someone saying that there is wrongdoing, that all the requirements of the Access to Information Act are not being complied with and that his or her department is hiding information. If the person has already complained to the Office of the Information Commissioner, subsection 23(1) applies and we cannot investigate. If the person has not complained to the Office of the Commissioner, we will ask the person if he or she has considered doing so. It is at their discretion.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
We are talking about people disclosing something general. In that case, we just need to turn around and tell them to make the request themselves. The judgment you make is about the request and not about the individual. Is that correct? You say “if the person has already complained”. Do you understand the nuance?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
The subject of the request may not be the reason for a disclosure investigation; however, the individual remains protected against reprisals at all times. So there may be situations where people are protected against reprisals because they have gone to the Office of the Privacy Commissioner.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Normally, people making disclosures are protected, even in terms of confidentiality. They should never find themselves in situations where they are subject to reprisals for a request that is not certain to be followed up basically because it was made elsewhere.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
That's right, except that not all recourse is confidential. Clearly, complaints made under the Access to Information Act and the personal information protection act are confidential. However, there are other organizations, like the Canadian Human Rights Commission, where recourse is less confidential.
The people remain protected. The message we are sending to people is that they are protected to the extent possible.
For the people who want to disclose wrongdoing, we have a system that allows them to communicate with us in order to get information about the act. In our annual reports, we publish the statistics on the numbers of people who have contacted us; we call it preliminary information. We try to guide people. Of those people, quite a good number do indeed make a protected disclosure. If they ask, we can also offer them legal counsel for $1,500. It's limited, but at least it can guide them a little. The system is not perfect.
We have a role to play. We try to steer the people who call us in the right direction. In addition, each disclosure is given an admissibility review.
Conservative
The Chair Conservative Tom Lukiwski
We have four other colleagues who have questions.
We'll start with Mr. McCauley.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Very quickly, I want to go back to the imminent danger and reporting things to the media. He mentioned that it just codifies something that's already been established. Could you tell us about that briefly?
Also, an investigation can often take three to six months. When we have a situation, not like a forest fire that is going to happen tomorrow or something at Transport Canada, but perhaps there's a procurement thing that could happen with a one-month deadline but it would take three or four months to investigate. Would that also not qualify as a reason to go to the media, knowing that if I go to you, it's not going to be resolved for three to six months, but a contract or some wrongdoing within a procurement could be happening within a one-month period?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Honestly, I think in—
Conservative
Kelly McCauley Conservative Edmonton West, AB
I know I'm probably stretching it, but again, I'm trying to put myself in a whistle-blower's shoes to get a sense of the importance of timing.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
I think if a procurement issue also comprised a potential serious offence—
Conservative
Kelly McCauley Conservative Edmonton West, AB
It could be wrongdoing, graft, corruption, poor planning, whatever.
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
The gravity of it and whether it qualifies under section 16 as a protected disclosure would really depend on the seriousness of the offence. For a case of bribery, for example, or similar situation, it may be difficult to demonstrate how imminent the situation was, but there are ways of doing it. If the contract is about to be awarded, for example, there are ways of doing it.
There's no doubt, Parliament as it created the PSDPA implemented some strict criteria around public whistle-blowing. Before the implementation of this act, people who faced labour relations difficulties as a result of blowing the whistle were often using whistle-blowing as a defence to challenge their termination of employment, their discipline. It was after the fact, they were using it as a defence, and they had to demonstrate according to the Supreme Court of Canada, in the case of Fraser, which goes back to the 1990s, that they met those criteria.
What Parliament did in 2007 was essentially take the common law criteria, codify them, and say, if you meet those criteria, you no longer have to defend yourself in court, although you still can. The act provides that a public servant can exercise any other recourse at 51.2 of the act if they choose to. They're not blocked from exercising other forms of recourse. The act does specify that if you exercise another recourse, you then cannot make a reprisal complaint at the same time.
The Federal Court of Appeal in the case of Ms. Therrien instructs us a little bit on that, so we may have to look at what that means exactly dealing with the same subject matter.
Essentially, all public servants can still exercise whatever other recourse is available to them with respect to whistle-blowing to the media. Only if they meet those criteria can they then avail themselves of the PSDPA protection, which means they make a complaint to our office, we decide whether or not to investigate, and then if the commissioner has reasons to believe that a reprisal occurred at the end of the investigation, there's a referral to the tribunal.
But it is a condition precedent that the criteria at section 16 be met, and they are strict. They're not impossible to surmount, but they are strict. They represent almost 100% of what the common law says about whistle-blowing.
Conservative
Kelly McCauley Conservative Edmonton West, AB
It would be pretty difficult to adjust or loosen it if we have an outside precedent?
General Counsel, Office of the Public Sector Integrity Commissioner of Canada
Yes. One philosophy of whistle-blowing is that you can create a right of whistle-blowing and if you meet the criteria that Parliament chooses for whistle-blowing, and Parliament is free to adjust those criteria, you can then invoke a recourse, whether it is a recourse under the PSDPA as we have now, or generally another recourse, which is not precluded under the act.
We may have erred. I believe this committee may have erred that there's only one choice. That is not the case. Section 51.2 of the PSDPA clearly specifies that all other forms of recourse continue to exist. What Parliament intended to do was to limit duplication of proceedings, which is what we are trying to implement when we decide whether or not to investigate.