Colleagues, I think we'll get going. Even though it's a minute or two prior to the scheduled start time, we have a very busy agenda today and I'd like to make sure we maximize all of our allotted time.
Before I introduce our witnesses and have them give their opening statements, I have a couple of housekeeping notes.
Because we have several presenters today and at least two one-hour panels, there will only be time for one complete seven-minute round of questions with each panel, so be prepared for that. The second panel might even be a bit more truncated than that, because I'd like to get 15 minutes at the end of today's meeting to talk about future business and some future witnesses. We have to make a few decisions on that.
We have two options. We can keep the testimony and the questioning short, or we can extend the sitting time of this committee by about 10 or 15 minutes. We'll play that by ear.
With that brief introduction, I want to welcome all of our guests. This is the 71st meeting of the Standing Committee on Government Operations and Estimates. We're dealing with our study of the Public Servants Disclosure Protection Act, also know as the whistle-blower act.
Without further ado, from the Department of National Defence, Mr. Manchanda, you have an opening statement. The floors is yours, sir.
If you could keep your comments, witnesses, to certainly no more than 10 minutes, and less if possible, that would be very much appreciated.
Please, sir, go ahead.
Mr. Chair, and members of Parliament, thank you very much for the invitation this morning.
It is my distinct pleasure to address you today on the subject of the Public Servants Disclosure Protection Act in the context of the Department of National Defence and the Canadian Armed Forces.
I am the designated senior officer within the Department of National Defence and the Canadian Armed Forces for receiving and dealing with disclosures of wrongdoing.
Before I speak about the act and provide my organization's perspective, I would like to briefly address my responsibilities inside the organization.
First, in my role as assistant deputy minister, review services, I am responsible for providing the deputy minister and the chief of the defence staff with assurance services regarding the adequacy of the Department of National Defence and the Canadian Armed Forces' internal controls; governance and accountability processes; risk management practices, compliance with government legislation, regulations and policies; as well as program effectiveness. It is important to note that my role is independent and I report directly to the deputy minister and the chief of the defence staff.
My responsibilities are carried out through the delivery of professional internal audit and evaluation programs, the conduct of special examinations and inquiries, including those related to internal disclosures, and prevention and awareness activities, as well as management of the Defence Ethics Program. My office is also the formal departmental point of contact with the Office of the Auditor General.
I maintain unfettered access to any and all information within the Department of National Defence and the Canadian Armed Forces, and in line with my independence function I do not manage any operational program area directly.
Canadians have an absolute right to expect all public servants and members of the Canadian Armed Forces to behave ethically and in accordance with their legal obligations. To encourage and support these values, we are committed to fostering an environment in which all employees may honestly and openly raise ethical and legal concerns without fear or threat of reprisal, consistent with the act.
As members of this committee know, the goal of the legislation is to encourage employees in the federal public sector to come forward, if they have reason to believe that serious wrongdoing has taken place. It provides clear guidance to public servants on several options for addressing and reporting wrongdoing.
The Public Servants Disclosure Protection Act prohibits taking reprisal against a public servant who has made a protected disclosure in good faith or who has co-operated in an investigation. It also provides a fair and objective process to respect those accused of wrongdoing.
We have implemented the Canadian Forces disclosure process, which provides for the disclosure of wrongdoing by a Canadian Armed Forces member, in order to comply with section 52 of the act, which requires the Canadian Armed Forces to establish procedures for the disclosure of wrongdoing, including the protection of persons who disclose wrongdoing, deemed comparable by the Treasury Board to those established under the Act.
The Canadian Armed Forces internal disclosure regime is built on the same tenets as the Public Servants Disclosure Protection Act and includes the following.
There is a definition of what constitutes wrongdoing. There is a process for disclosure of wrongdoing with established procedures. There is the designation of a senior officer, which is my role. The committee will note, as I mentioned earlier, that I do not form part of the Canadian Armed Forces' chain of command. There is a prohibition against reprisal for any Canadian Armed Forces member making a disclosure of wrongdoing. It is important to know that any allegation of reprisal under the Canadian Armed Forces regime is investigated directly by me. Finally, there are confidentiality and annual reporting requirements.
In the belief that the Department of National Defence and the Canadian Armed Forces will benefit from a common ethical foundation that respects the unique mandate of each, the deputy minister and the chief of the defence staff have established a joint Department of National Defence and Canadian Armed Forces Code of Values and Ethics.
It is important to highlight, Mr. Chair, that the Public Servants Disclosure Protection Act assigns a departmental responsibility for implementing the provisions of the act to the chief executive.
Within the Department of National Defence, the chief executive is the deputy minister, who is responsible to designate a senior officer—me—to direct the development and implementation of internal procedures for the receipt and investigation of wrongdoing and to ensure that the obligations under the Act are fulfilled.
Under the Canadian Armed Forces disclosure process, the chief of the defence staff has designated me as the proper authority for purposes of the Queen's regulations and orders.
In these dual roles, I direct the development and implementation of internal procedures for the disclosure of wrongdoing, ensure that the obligations under the act and the Canadian Armed Forces disclosure process are fulfilled, ensure that corrected measures are taken when wrongdoing is found as a result of a disclosure, and oversee on behalf of the deputy minister and the chief of the defence staff the preparation of the annual report required by the office of the chief human resources officer of Treasury Board.
This brings me to the question of awareness. One may have the best legal and ethical framework in the world, but if few people are aware of its existence, it is all beside the point. Mindful of this, we have taken great care to promote our Department of National Defence and Canadian Armed Forces Code of Values and Ethics and its relationship with our internal disclosure program in particular.
The Department of National Defence and Canadian Armed Forces Code of Values and Ethics represents an important element of the Defence ethics program, which will allow us to proactively shape, promote, and develop an ethical culture that reflects and supports public sector and Canadian Armed Forces values and ethics. Leadership and management at all levels are expected to visibly promote and support the values and ethics of this code.
Our training and awareness activities include an internal disclosure website that provides guidance on how to submit a disclosure as well as relevant contact information to assist those who may have additional questions regarding wrongdoing reprisals.
We have also posted online disclosure of wrongdoing guidelines for our DND employees and Canadian Armed Forces members. We have integrated an internal disclosure curriculum into other training for employees and members; for example, on-boarding for new employees, defence ethics training, and also prevention workshops at bases and wings.
I am pleased to say that we have dedicated resources to our internal disclosure process, befitting a large and complex organization. These include a full-time dedicated internal disclosure office and investigation section responsible for investigating all manner of alleged wrongdoing in the Department of National Defence and the Canadian Armed Forces.
The team responsible for conducting these investigations includes former RCMP and military police officers along with a team of forensic examiners who are specialists in the area of finance and accounting.
In developing and refining our program, we continue to work within the larger government setting through our participation in the interdepartmental working group on internal disclosure. In addition, we provide guidance to and share best practices with other government departments on a regular basis.
In closing, I would like to reiterate that our goal is to ensure that every employee and member of the Department of National Defence and the Canadian Armed Forces has the opportunity to report wrongdoing wherever they believe it exists. An internal disclosure program that is well understood and trusted will form the basis for improvements and priorities as we continue to mature our program at the Department of National Defence and Canadian Armed Forces.
In turn, this will ensure that the Canadian public remains confident in the DND Canadian Armed Forces process as the department exercises its roles and responsibilities.
Mr. Chair, that concludes my presentation. Thank you very much for the opportunity. I look forward to answering your questions.
Thank you, Mr. Chairman.
I welcome the opportunity to present and discuss with the committee the measures that Public Services and Procurement Canada has put in place to uphold the public's trust in our operations. Accompanying me is Biagio Carrese, director of special investigations.
PSPC plays a key role in the operations of the federal government as its treasurer, accountant, central purchasing agent, linguistic authority, and real property manager. I could talk about all the things the department does, but I'll just skip that part of the presentation.
The department has been working diligently over time to protect and safeguard the use and expenditure of public funds, to ensure strong stewardship and transparency, and to uphold the public confidence in relation to its contracts and real property agreements.
To prevent and respond to potential wrongdoing, PSPC has a strong framework in place. We have embedded measures into everything we do, from our corporate culture, which is at the very core of our approach, to our management practices, systems, and processes involving daily operations. It starts with the tone from the top and includes values and ethics, our code of conduct, training, investigations, etc. This includes ensuring that departmental values are reflected in the orientation for new employees and on-boarding newly appointed executives. PSPC also reduces the opportunities for fraudulent business activities through security screening of contractors and an integrity regime for Government of Canada contracts. There is also a procurement code of conduct that applies to contractors as well as employees.
The department seeks to ensure that its employees act in the public's best interest at all times and ensure transparent, accountable, and responsible management; that its employees act in compliance with the letter and spirit of all applicable laws; that its employees prevent, avoid, and report situations that could give the appearance of a conflict of interest or result in a potential or actual conflict of interest; and that its employees disclose potential wrongdoing.
As the department's senior officer under the Public Servants Disclosure Protection Act, I am very proud of our internal disclosure program. We have carried out extensive outreach to ensure that employees know their obligation of coming forward with potential wrongdoing. This responsibility has been embedded in our code of conduct. We have explained the protections offered under the PSDPA as well as the methods we employ internally to protect the discloser's identity as well as that of the alleged wrongdoer.
I believe that our number of disclosures over the years indicates that our employees do come forward with allegations and have confidence that we look into each one and do not tolerate reprisals against disclosers. When allegations are founded, disciplinary and corrective measures are taken. When systemic issues arise, recommendations are made to address process and procedure deficiencies.
Investigations under the PSDPA are but one mechanism to identify and address wrongdoing. Other mechanisms include internal investigations; routine audits undertaken by our human resources, acquisitions, and finance branches; and complaints that come in related to procurement, including proactive ones where the department feels there is a high risk.
Our investigative team also conducts investigations related to system vulnerabilities that may lead to privacy breaches and/or fraud. These are all rigorously investigated by a dedicated, multidisciplinary team of investigators. The team receives an average of 100 complaints per year, of which about a third are under the PSDPA.
I'll close by saying that PSPC is committed to the efficiency of its internal disclosure program, as this program is a critical component of ensuring confidence in the overall management of our organization.
Mr. Chair, thank you for inviting us. This gives me an opportunity to speak to you about the enforcement of the Public Servants Disclosure Protection Act within the Department of Indigenous and Northern Affairs Canada.
My name is Line Lamothe and I am the acting director general of the Human Resources and Workplace Services Branch. I am accompanied this morning by Mr. John Tremble, INAC's senior officer for disclosure and director of the Centre for Integrity, Values and Conflict Resolution.
INAC supports indigenous people—first nations, Inuit, Métis—and northerners in their effort to improve social well-being and economic prosperity; to develop healthier, more sustainable communities; and to participate fully in Canada's political, social, and economic development to the benefit of all Canadians.
INAC has just over 5,000 employees, and 60% are based in the national capital region and 40% are based in 10 regions across Canada.
The goal of the Public Servants Disclosure Protection Act is to encourage employees in the federal public sector to come forward if they have a reason to believe that serious wrongdoing is taking place or has taken place. The act protects public servants against reprisal and provides a fair and objective process for those accused of wrongdoing.
Employees can make a disclosure to either their supervisor, the INAC-designated senior officer, or directly to the Public Sector Integrity Commissioner, an independent agent of Parliament. Pursuant to subsection 10(2) of the Public Servants Disclosure Protection Act, INAC's deputy minister has designated the director of the centre for integrity, value, and conflict resolution, Mr. John Tremble, as the senior officer responsible for receiving and dealing with disclosure of wrongdoing made by INAC employees. The director is supported by three staff in managing the internal disclosure process.
In accordance with subsection 10(1) of the act, INAC created standard operating procedures for the implementation of the act. The procedures are available to all INAC employees on the departmental Internet site—and I believe you have a copy of them—along with links to various resources from the Office of the Public Sector Integrity Commissioner on making a protected disclosure and on the protection afforded to the discloser.
The standard operating procedures provide that the senior officer, with the assistance of the centre, will provide confidential and neutral advice and guidance to public servants considering making a disclosure. The procedures also provide that supervisors who receive a disclosure of wrongdoing are required to promptly transfer it to the senior officer and advise the employee-discloser of this transfer.
When a public servant contacts the centre, the senior officer, with the assistance of the centre, performs initial screening and preliminary analysis of the information received and determines whether it meets the threshold for a disclosure. The public servant is then informed of the disclosure process, including the protections afforded by the act.
Depending on the nature of the allegation, the senior officer may engage a subject matter expert to review the allegation and gather additional information. For example, if an allegation deals with contracting, the senior officer would work with contracting experts to determine whether the allegations could meet the legislated definition of wrongdoing.
If the senior officer believes there are sufficient grounds to launch an investigation, he will inform the deputy minister of the disclosure, the preliminary analysis, and seek approval to initiate an investigation of the matter described in the disclosure. An independent investigator will then be engaged and mandated to conduct an investigation in accordance with the Public Servants Disclosure Protection Act. The investigation will be conducted as informally and expeditiously as possible.
Once an investigation is completed, the senior officer will review the results of the investigation, provide the findings, and make recommendations to their deputy minister. When contacted by the Office of the Public Sector Integrity Commissioner, INAC co-operates by providing information to assist PSIC in evaluating the disclosure they received. INAC provides PSIC with information to assist them in determining whether to launch an investigation. PSIC may also request information to assist them in conducting an investigation.
As part of its ongoing awareness and training, the internal disclosure process is discussed during mandatory values and ethics training that is delivered to INAC staff across the country.
Over the past three years, 73 sessions were delivered to some 1,200 employees, almost a quarter of all departmental staff.
Since the inception of the act, INAC has received on average three disclosures per year.
Mr. Chair, members of the committee, thank you for your attention.
I can talk really quickly, Mr. Chair.
I said in my opening remarks that just on the investigative side, we at PSPC, specifically Biagio, get procurement complaints from the old Public Works. That's not going to surprise you. We get them from all kinds of places, including outside. However they come into the department or to whomever, 100% are reviewed. Sometimes they're in envelopes.
We look at administrative investigations when something is going wrong—if money is missing, for example—and finally, of course, the investigations under this act. But as I said, it starts with having a strong culture, and we aim to have a strong culture of values and ethics and strong training around that and expectations at every level—senior management, staff, new employees—and we work with the unions in that regard.
You can imagine, I think, that in the biggest procurement and real property department, we work on the framework for how we do it all the time as a management team and, frankly, as a department.
Yes, and thank you for the question.
When the Public Servants Disclosure Protection Act first came into force in 2007, a number of organizations were excluded from the act, and the Canadian Armed Forces was one of those organizations. The onus was on the Canadian Armed Forces to put in place a parallel regime. I think the wording in the Public Servants Disclosure Protection Act indicates a regime similar to that under which the Treasury Board rolled out the Public Servants Disclosure Protection Act.
I'll just summarize very quickly. The tenets on which we built the Canadian Armed Forces process are very similar to what's under the civilian side under the Department of National Defence. We have a definition of wrongdoing; there are very minor differences in the definition of wrongdoing. We put in place established procedures for disclosure; there is no difference between the two regimes. A senior officer has to be appointed, so that's me for both of those; so that's identical.
There is a prohibition against reprisal. That's one difference that I'd like to point out to the committee. Under the Public Servants Disclosure Protection Act, if there is a case of reprisal, in the case of someone coming forward with a protected disclosure, those cases are investigated directly by the Public Sector Integrity Commissioner. Under the Canadian Armed Forces process, reprisal is dealt with by me. So all reprisal complaints are dealt with and investigated by me. I think that is an important point for the committee to note.
There is a requirement for confidentiality in the process, so we ensure confidentiality under both.
There is a need for annual reporting, so we prepare one annual report under both.
That sums it up.
I want to thank all of our witnesses for appearing here today. I do apologize for what might seem a bit of a truncated version of a question-and-answer period, but unfortunately we do have time constraints. It seems that in studies such as this, the more answers that are given, the more questions are raised.
With that in mind I certainly encourage all of our committee members, should they have additional questions to ask of you, to please submit them in writing.
Subsequent to that, should any of you have additional information you think would be of benefit to our committee, I strongly encourage you to give that in written form to our clerk. Specifically, as we've heard in questions today, have you any suggestions as to how the act might be improved, in your estimation? This committee would very much like to hear your suggestions.
With that, once again, thank you all for your appearance.
We will suspend for just a couple of minutes while we get our next witnesses to the table. We are suspended.
Good morning, Mr. Chair, and honourable members. My name is Marc Thibodeau and I'm the director general of the labour relations and compensation directorate at the CBSA, the Canada Border Services Agency.
I'd like to thank the committee for the invitation to speak to you today on your review of the Public Servants Disclosure Protection Act.
As the committee has heard, the main objectives of the Public Servants Disclosure Protection Act, the PSDPA, are to promote ethical practices in the public service and to create a positive environment and confidential process for public sector employees and others to disclose wrongdoing in the workplace without fear of reprisals.
While the Treasury Board Secretariat is responsible for the broad PSDPA policy framework, each department and agency is responsible for implementing its own processes and internal accountability mechanisms under the act.
CBSA is a dynamic organization of 14,000 employees which facilitates legitimate travel and trade while keeping the border safe and secure. Our operation runs 24 hours a day, seven days a week, and we have a mix of uniformed and non-uniformed employees, some with enforcement responsibilities.
As a law enforcement organization, CBSA has a culture that is different from that of a regular office environment. To that end, we have a comprehensive induction and training program for all of our front-line recruits at the CBSA College, where integrity is part of the program. Our officers emerge from the program highly trained, aware of their rights and obligations, and supported by an engaged union. In support of the objectives under the PSDPA, the CBSA has implemented an integrity strategy that is integral to the relationships among the agency, employees, partners, and clients. The strategy outlines expected employee behaviours as outlined in the CBSA code of conduct and the Values and Ethics Code for the Public Sector, which form parts of their conditions of employment.
The strategy is built on three pillars. One pillar is proactivity, under which expected standards of conduct and disciplinary consequences for misconduct are communicated regularly, and under which we investigate suspicions of misconduct immediately. The second is a “no wrong door” approach in which our specialists guide employees towards the appropriate avenue to have their issues addressed, no matter how the issue is brought to our attention. The third is our motto of “no stone unturned”. Issues are tracked and reviewed using numerous tools such as misconduct investigation, workplace assessment, and, where necessary, criminal investigations. These three pillars are in addition to the pre-employment reliability screening process.
Mr. Chair, the CBSA promotes a culture of open communication. Supervisors at all levels are expected to foster and demonstrate ethical leadership. Management is expected to identify and resolve issues including misconduct in an appropriate and timely manner. We provide managers with tools and resources to help them fulfil their responsibilities, including PSDPA training. It is critical that employees be aware of the PSDPA and the many other internal disclosure and recourse processes that exist. Promoting this awareness is key to ensuring that they understand their rights and where to turn for assistance.
We aim to provide multiple paths whereby everyone can confidentially report alleged misconduct, and we aim to do so consistently across the country. Should agency employees wish to report misconduct, their complaints can come through a number of avenues, such as their supervisor or union referral or through an online or in-person submission.
Furthermore, confidential disclosure of wrongdoing under the PSDPA can be made to their supervisor, the CBSA senior officer for internal disclosure, or externally through the Public Sector Integrity Commissioner. As a first step, we engage with employees to discuss their disclosure of wrongdoing, and we outline the disclosure process confidentiality provision and explain that the allegation must meet the threshold of the act's definition of wrongdoing for us to investigate. Finally, we underline that the act protects employees against reprisal and explain how to make a complaint to the Public Sector Integrity Commissioner in the event of an alleged reprisal.
In order to determine if an investigation is warranted, we seek to answer the following: whether there is another recourse mechanism available to review the allegations; whether the matter, if proven to be founded, meets the act's definition of “wrongdoing” and the precedents set by the Integrity Commissioner; and, whether the issue is one of public or personal interest.
In the cases that will not be investigated, employees will receive an explanation, with a decision in writing, and will be apprised of other recourse mechanisms available to them—for example, where appropriate, the informal conflict resolution process.
Since 2013-14, an average of 38 individuals per year have sought advice or proceeded with one or more disclosures. In 2015-16, the CBSA reported that it had received 93 allegations and carried forward 25 more, but let me share some details to provide greater meaning to these numbers.
First, 61 of these allegations stem from two employees. After a preliminary review, 16 of these have been retained for more detailed analysis. Furthermore, looking at the 70 allegations that were not acted upon, one employee ceased the disclosure process, 23 were referred to other processes, and 46 did not meet the threshold for investigation under the act.
To conclude, in pursuing our agency's important mandate, CBSA employees interact with millions of individuals and goods, with domestic and international partners, with law enforcement organizations, and with industry stakeholders. As such, upholding the public's trust and promoting a safe and ethical workplace are matters we take seriously.
I would be happy to answer any questions the committee may have.
I've heard your words, and I'll try to keep it to seven minutes.
I am the professional responsibility officer for the RCMP, and with me is Ms. Jo-Anne Taylor, the manager of our PSDPA office.
The RCMP has undertaken a number of legislative, policy, and procedural initiatives as part of our approach to handling disclosures of alleged wrongdoing. We have just under 30,000 employees, comprising 18,000 regular members, who are police officers; 4,000 civilian members; and about 6,500 public service employees or PSEs. While members and PSEs are hired under different acts of Parliament, all are considered public servants for the purposes of the PSDPA.
It's important for the committee to recognize that the RCMP was not initially included in the proposed legislation and was only included at later stages, which necessitated certain provisions in the PSDPA to accommodate the fact that the framework for dealing with certain matters in the RCMP, such as discipline, was prescribed in the RCMP Act. That explains why certain things may not be dealt with by the Office of the Public Sector Integrity Commissioner or may be put on hold pending the completion of RCMP processes. For example, the decisions of our conduct adjudicators are not subject to wrongdoing complaints.
Since the coming into force of the PSDPA in 2007, we have followed the advice that the spirit and intent of the legislation is to avoid duplication of processes. On the legislative front, the RCMP Act recently underwent significant and substantive amendments, with the coming into force of the Enhancing Royal Canadian Mounted Police Accountability Act.
The accountability act provided the flexibility to allow for a more seamless response to disclosures of wrongdoing under the PSDPA, such as aligning the new conduct management process and the investigation of disclosures of wrongdoing. A specific example here is that, as the senior officer in the RCMP, I am now the delegated conduct authority to deal with discipline, which we now call “conduct”, in cases involving PSDPA allegations. We also have new Commissioner' Standing Orders, which permit the RCMP senior officer to better balance responsibilities, requirements, and rights under the PSDPA and the RCMP Act.
In terms of policy-related initiatives, the RCMP has developed a new PSDPA policy for all RCMP employees, implemented a new code of conduct for RCMP members, introduced a new code of conduct for RCMP PSEs, and created a conflict of interest directive for all RCMP employees that consolidated over 30 previous policies or instruments.
It is important to note that both the code of conduct applicable to members and the code of conduct applicable to PSEs adopted a more positive, responsibilities-based approach to conduct, and both contain an obligation to report concerns relating to misconduct. The RCMP's PSDPA policy also affords the senior officer the opportunity to assemble an assessment committee to assist in confidentially reviewing disclosures of alleged wrongdoing against a template containing applicable assessment criteria. While the RCMP recognizes that OPSIC has exclusive authority for investigating complaints of reprisal under the PSDPA, the RCMP'S PSDPA policy includes an internal reprisal process, as do a number of other internal processes, such as harassment and grievances.
In terms of our procedures, in December 2013, the RCMP implemented the workplace reporting system, or WRS. It is a confidential and centralized way for employees to report workplace issues through the professional ethics office, which reports to me. The WRS works when employees are unsure how to voice their concerns or when established reporting methods are not appropriate or possible. This process respects the confidentiality requirements of the PSDPA and provides another avenue of reporting for all employees. Between 2014 and 2016, the WRS dealt with 95 requests for assistance, three of which specifically involved alleged wrongdoing under the PSDPA. Additionally, RCMP personnel responsible for the harassment process have been instructed to inform their clients of the reprisal complaint process offered by OPSIC, as well as internal procedures to address concerns of alleged reprisal, which is also reflected in our policies.
PSDPA training is delivered either upon request or through in-service training on leadership development, such as our supervisor development program, manager development program, and executive or officer development program.
In terms of our activity under the statute, the RCMP has posted instances of founded wrongdoing three times since the PSDPA came into force, most recently in fiscal year 2013-14. These cases have touched on concerns with financial signing authorities, contract administration, and travel expenses. Overall, we are presently dealing with the 16th case involving alleged wrongdoing under the PSDPA.
With regard to annual reporting to the Treasury Board Secretariat on the PSDPA, as committee members are likely aware, when we talk about disclosures, we are really talking about allegations, given the TBS direction that if a disclosure contains multiple allegations, they are to be counted as separate disclosures, one per allegation. In the RCMP's 2015-16 PSDPA annual report to TBS, we reported having received 12 inquiries and eight disclosures.
On any reading, the PSDPA is complicated and challenging in terms of how it is drafted.
In terms of areas of comment for the RCMP, one aspect is the premature release by OPSIC of information related to a reprisal matter when the RCMP may have ongoing, outstanding processes or investigations of its own.
In a recent case, as a result of El-Helou v. Courts Administration Service from the Federal Court, OPSIC followed the requirements arising from that decision and disclosed to the complainant the information it had gathered as part of its reprisal investigation before the RCMP had completed its investigation of the initial alleged wrongdoing.
The provision of information by OPSIC to complainants in such circumstances could influence the complainant and/or subsequent investigations. Clearly, it is not satisfactory to have one investigative body under an obligation to disclose information before another body has completed its investigative mandate. It may be that some clarification can be provided in the PSDPA with respect to the competing tensions faced by OPSIC as a result of this Federal Court decision.
More recently, the RCMP received a letter from OPSIC that indicated that because the RCMP's code of conduct applying to members is in a regulation, a breach of the code of conduct not only results in a potential wrongdoing under PSDPA's paragraph 8(e), “a serious breach of a code of conduct”, but also constitutes a potential wrongdoing under paragraph 8(a), a breach of a regulation.
In other words, a PSE will only have committed a wrongdoing involving a breach of the code of conduct where it is “serious”. However, for an RCMP member, a breach of the code of conduct, whether or not it is serious, will qualify as a wrongdoing because the code of conduct is in a regulation. As a result, members are potentially liable for a finding of wrongdoing that is lower than and different from that of a PSE, which would not appear to be in accord with the intent of the PSDPA in its treatment of public servants.
Relatedly, consideration may also be given to clarifying subsection 6(1) of the PSDPA to indicate that the RCMP's obligation to establish an organizational code of conduct is met, for members, through the existing conduct under the regulations.
Finally, clarification at sections 43 and 44 of the PSDPA, regarding the scope of the confidentiality requirements in section 22.3 of the Privacy Act, and section 16.5 of the Access to Information Act, would assist the RCMP and potentially other departments, as there is some debate about the scope of confidentiality requirements pertaining to information that was not created for an investigation into wrongdoing, but rather was obtained in the course of that investigation.
Thank you for the opportunity to appear today.
Good morning, Mr. Chair, and members of the committee.
My name is Joanne Renaud. I am the director general of audit, evaluation and ethics at the Communications Security Establishment, known as CSE.
It is my pleasure to appear before you today as you undertake your review of the Public Servants Disclosure Protection Act, the PSDPA.
As the senior officer responsible for receiving and acting on disclosures of wrongdoing, I am grateful for the opportunity to participate in this important discussion and share with you the internal mechanisms that CSE has in place for the disclosure of wrongdoings.
Since this is my first time appearing before this committee, by way of background, allow me to begin by introducing CSE and its mandate. CSE is one of Canada's key security and intelligence organizations, and has been in the business of protecting Canadians for over 70 years. Our mission stems from our three-part mandate under the National Defence Act.
The first part of our mandate allows for the collection and analysis of foreign signals intelligence. CSE acquires and uses information from the global information infrastructure to provide foreign signals intelligence based on the government's intelligence priorities. It's important to emphasize that CSE targets only foreign entities and communications, and is prohibited by law from directing its activities at Canadians anywhere or at anyone in Canada.
The second part of our mandate allows for cyber defence and protection. CSE provides “advice, guidance, and services to help ensure the protection of electronic information and information infrastructures of importance to the Government of Canada.” Our cyber and technical expertise helps identify, prepare for, and respond to the most severe cyber-threats and attacks against computer networks and systems, and the information they contain.
Finally, the third part of our mandate allows us “to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.” As Canada's national cryptological agency, CSE possesses unique capabilities and expertise that may be used to assist a requesting law enforcement or security agency, under its legal authority. These activities are subject to any limitations on the requesting agency's legal authority, including any applicable court warrant.
Lawfulness and protecting the privacy of Canadians are enshrined in our mandate, and are also a fundamental part of our organizational culture. CSE employees undergo a rigorous security screening process and maintain the oath of secrecy, as well as the highest standards of security. We respect and protect the privacy of Canadians in accordance with the Canadian Charter of Rights and Freedoms, our legislation and Canadian privacy laws.
In fact, the extremely sensitive nature of our work requires us to be even more vigilant, and we take this responsibility very seriously. As public servants working in a classified environment, it is critical that we retain the trust of the government and of Canadians. As a result, CSE has multiple structures in place to ensure that we continue to operate lawfully.
These include executive control and oversight, embedded policy compliance teams in our operational areas, an on-site legal team from the Department of Justice, and active ongoing monitoring of internal processes.
In addition, all of CSE's activities are subject to robust review by the independent CSE Commissioner. The CSE Commissioner has full access to CSE employees, records, systems and data.
Furthermore, I am proud to share with you that just a few weeks ago, we celebrated the third anniversary of the most recent version of the CSE values and ethics charter. The charter articulates our most cherished values of sustainability, integrity, lawfulness, innovation, collaboration, and agility, and sets high standards for professional behaviour to uphold these values.
As you know, CSE requires exceptional treatment under the PSDPA for reasons of national security. As such, the charter provides an internal mechanism for employees to discuss or report serious ethical issues, including a perceived or suspected wrongdoing. Such a mechanism is required for CSE to be compliant with section 52 of the PSDPA, and has been vetted by Treasury Board and is consistent with CSE's values.
In accordance with the charter, any CSE employee who believes they have witnessed or have knowledge of an alleged wrongdoing in the workplace is encouraged to disclose the matter to his or her manager, a union representative, labour relations, the manager of the ethics office, or me, as the senior officer.
As the senior officer, I am responsible for receiving and reviewing these disclosures of wrongdoing, and establishing if there are sufficient grounds for further action and if resolution is appropriate. Similarly, any employee who believes he or she is being asked to act in a way that contradicts the values and ethics set out in the charter can report the matter directly to me. They can be accompanied by a trusted person such as a colleague or union representative.
If neither option seems reasonable or appropriate, a disclosure may be made directly to our deputy head, the chief of CSE. Should a situation occur where an employee feels strongly that a perceived wrongdoing cannot reasonably be addressed within CSE, in such instances employees are reminded that one of the duties of the CSE commissioner, as laid out in the National Defence Act, is to undertake any investigation that he or she considers necessary in response to a complaint.
I am responsible for preparing an annual report to the chief on the number of disclosures received, actions taken, investigations initiated, recommendations made, as well as any identified systemic issues and recommendations for improvement.
The chief in turn is responsible for reporting disclosures made and related issues as part of the annual report to the Minister of National Defence. If an allegation is brought forward that does not meet the criteria of an alleged wrongdoing, I can also direct CSE employees' concerns for consideration and possible handover to other redress parties including audit, management, personnel security, labour relations and our internal counselling and advisory program.
It's important to stress that employees are protected from reprisal for having made a disclosure or having co-operated in an investigation associated with a disclosure. CSE is committed to protecting the identity and privacy of persons involved in all matters related to disclosures of wrongdoing. All information obtained in the course of an investigation is handled and stored in accordance with established procedures for handling and storing protected or classified information. In addition, all information collected as a result of a disclosure is treated in a confidential and discreet manner.
I will conclude my remarks by stating that I am confident in the internal mechanisms that CSE has in place for the disclosure of wrongdoing. My confidence stems from the professionalism and commitment of CSE's highly skilled workforce in carrying out their duties in an ethical and professional manner.
We at CSE know that values and ethics play a fundamental role in maintaining public confidence in the integrity of CSE. As a result, we will continue to strengthen our ethical culture and maintain high standards of behaviour in everything we do.
Thank you for inviting me here today. It will be my pleasure to answer any questions you might ask.
Thank you very much, Chair. Thank you all for being with us here this morning.
It's very interesting to hear from so many different agencies about something that is very critical to the well-being, productivity, and overall performance of your various agencies. Thank you very much for sharing that information with us.
My concern comes back to the size of the funnel. When we look at the numbers, it almost seems that, regardless of the pool of employees we're drawing on, that funnel seems to be relatively small. We're getting closer to saying why that is, but I'd still like to explore a bit further.
Mr. Thibodeau, in your case it's 93 allegations that came in, and you talked to us about why that was—that they came from two different individuals. I'm sure you can expand on that a little more.
Still, when the focus is on individuals, one almost thinks that there is a certain type of individual who will come forward, but many more who will not. It's almost as though where there's smoke there's fire. Can we say that there are some systemic problems going on? I don't even want to go as far as pointing to wrongdoing as defined in the act, but what I like to see is that there are many allegations incoming and that measures are being taken to refer them or to take corrective action, and so on.
Could you speak a little bit more to the situation at border services?