Colleagues, I think we'll begin. We're a few minutes late starting. We have not seen Mr. Conacher appear yet, but I understand that he is on his way.
Once again to our witnesses, Mr. Devitt, Mr. Devine, and particularly to Mr. Worth, who is appearing before us for the first time, welcome to our committee as we continue our study on the Public Servants Disclosure Protection Act. As we have done in previous committee meetings, we will be asking each of our witnesses to give a brief opening statement. That will be followed by questions from all of our committee members. We have approximately a little less than two hours for questions.
Colleagues, I would like to take about 15 minutes at the end of the meeting just to go over some very quick committee business, so I'll be adjourning this meeting at approximately 10:30. My understanding is that the witnesses before us will be able to stay for the entire duration of the meeting, except for Mr. Devitt who has to leave at 10:15 to catch a plane.
With that then, colleagues, I think we'll start with our opening statements.
Mr. Worth, you have not appeared before our committee before, so we'll start with you.
I want to thank the chairman of the committee for allowing me to speak with you today. It's a great honour.
I also thank you, honourable members of Parliament, for the time to provide input on your important initiative.
My name is Mark Worth. I am the director of the international whistle-blower project at Blueprint for Free Speech, which is an NGO based in Australia and Germany. I'm also the founder and co-coordinator of the Southeast Europe Coalition on Whistleblower Protection, which is an NGO [Technical difficulty--Editor] board member of the Platform to Protect Whistleblowers in Africa, which is a new NGO founded last month in Senegal.
We work in many countries around the world, in all regions, promoting whistle-blower protection, promoting whistle-blower legislation, working on whistle-blower cases, investigating cases, and writing about what's happening on the issue in general.
I want to start off by telling a little story. There was a man who worked for a government tax office. In 2013 he reported to the authorities that there was large-scale bribery occurring in the government tax agency, the government tax office, which was permitting companies to pay lower export fees and lower import fees. His disclosure led to the arrest of 53 people, so it had a huge impact in the country in terms of holding the guilty parties to account. He was fired quite swiftly and went to the government authority to get whistle-blower protection. He was granted whistle-blower protection status, which meant he had a right to be reinstated to his position with the government tax office; however, the director of the government tax office would not reinstate him. There's a provision in the law in that country that says that if a director of a government agency does not comply with an order to reinstate a whistle-blower, then that person, that director, is personally liable for fines of up to 10,000 euros. On June 4, 2015, the prosecutor called the director of the tax office telling him to reinstate the whistle-blower or else he would be fined 5,000 to 10,000 euros. The next day the man was reinstated. There was a big party and he got his job back.
This is an example of how whistle-blower laws—if they are tightly written, if there is good enforcement, if people understand the process, if there are penalties for retaliation that are actually levied if need be—mean that the whistle-blower can benefit from these rights.
The story I just told you did not happen in Canada. It didn't happen in the United States, which many would argue has the oldest and best whistle-blower laws in the world. It didn't happen in the U.K., which, perhaps not deservedly, has a very good reputation for its whistle-blower law. It didn't happen in Australia or Japan or South Africa or South Korea or anywhere else that has laws that have gotten a lot of attention. It happened in Bosnia and Herzegovina. This is a country that is not known for its success in fighting corruption, but in the case of whistle-blower protection, there have been some good examples.
Bosnia and Herzegovina, which is ranked 83rd out of 176 countries on Transparency International's corruption perceptions index, in this regard has a whistle-blower law that has very strong features that are better than Canada's, which is ranked ninth on the CPI. I think there is a lot to learn not just from the obvious countries when we talk about whistle-blower protection but from the countries that have provisions that are working in practice and that are actually helping people.
There's a lot of creativity in whistle-blower laws today. When Canada's law passed in 2005, we did not yet have the Transparency International principles. We did not yet have the OECD principles. We did not yet have the Council of Europe principles. We did not have other principles developed by other NGOs and organizations, so I think the review you're doing is coming at the right time. There's been a flurry of whistle-blower laws passed. Just since 2010 there have been about 25 whistle-blower laws passed around the world. There are a lot of lessons to learn, and I hope we're going to get into some details throughout the next couple of hours.
One point I would like to make at the outset is that I do not know the Canadian legal system. I just know the American system, and to some extent, the German system, where I live. I think it is not appropriate for an executive branch agency, the Public Sector Integrity Commissioner, to have the power to decide when and if a whistle-blower should have access to a judicial branch agency. I don't want to oversimplify that, but the way I understand it is that the Integrity Commissioner can refer cases to the tribunal. That is not even close to being best practice. I hope that either the law is changed to allow the commission itself to make rulings on reprisal, reinstatement, compensation, and penalties, or give the whistle-blower direct access to a tribunal. For a whistle-blower to have to go to an executive branch agency in order to get access to a judicial branch agency perverts the separation of powers.
Again, thank you very much for the opportunity to speak today. I'm looking forward to the other input and to answering your questions.
Thank you, Mr. Chairman, and thanks again to the committee for your invitation. It's a privilege to address you again.
I don't have much more to add to my earlier testimony to the committee. Perhaps I can remind the committee of some of the key features of the Irish legislation with which I'm most familiar and touch on some of the points raised at the last hearing.
The Irish legislation, the Protected Disclosures Act, was introduced in 2014. It replaced or sits alongside about 18 other pieces of legislation on the Irish statute book covering or protecting whistle-blowers. For the first time, it protects whistle-blowers in the public, private, and non-profit sectors.
Essentially all categories of worker with the exception of volunteers are protected, and they are protected against many different types of reprisal both formal and informal. They are protected against formal sanctions, which means dismissal or disciplinary action for having made a protected disclosure. Then their employers are vicariously liable for any mistreatments a whistle-blower might suffer as a consequence of making a protected disclosure. The employer is thus responsible for ensuring that a whistle-blower is not subjected to blame or discrimination or any other mistreatment during the course of their work.
They also have direct access to the courts. One of the most important features of the Irish legislation is the ability of a whistle-blower to bring, within 21 days of being served with notice of dismissal, an injunction or interim relief application to one of the lower courts, the circuit courts in Ireland. That means that a person making a protected disclosure can stop their employer from dismissing them within 21 days.
This is, as I said, one of the most important features, and it's important because, were they not able to avail themselves of this protection, they would likely have to wait two years for their case to be heard in the Workplace Relations Commission and suffer the financial consequences of that and the psychological and practical consequences arising from being out of work for up to two years.
The system has yet to really vet in. We're still waiting for courts to hear many of the cases, but we know that three-quarters of the cases brought to the circuit court for interim relief have been successful so far. We're confident that it has brought or will bring about an attitudinal change towards whistle-blowing in Ireland. We're already seeing the majority of employers in the private sector stating their commitments to protecting whistle-blowers. Some 90% of employers, according to one of our latest surveys, say they are supportive of whistle-blowing, even if the disclosure involves the release of confidential information or might damage the reputation of the employer.
The real test of this legislation is, as is the case with any legislation, in the way it's implemented. We're currently working with the government. We have support from the Department of Justice and Equality in Ireland and the Department of Public Expenditure and Reform to roll out a new program called “integrity of work”, which I'm more than happy to talk about further. It commits employers to ensuring that their employees do not suffer as a consequence of reporting and that action is taken in response to their report.
This is a new program, which we're launching just this year. We've already gained commitment from the Irish police service, the Irish Prison Service, the Department of Justice and Equality, a number of charities, the Environmental Protection Agency.... Around 30 organizations are signed up so far. We're confident that it can help move the discussion forward, away from the legislation itself to the way the legislation is implemented in practice.
I don't have any firm recommendations to make about the Canadian legislation, other than perhaps to echo Mark Worth's concerns about allowing or affording an executive agency the opportunity to prevent workers from availing themselves of their legal rights and access to the courts.
Again I would repeat my comment in the last session to the effect that any legislation should be simple, it should be clear, and it should cover all workers across the economy, not just public sector workers.
At the last hearing I discussed the best practices in global whistle-blower laws that help us distinguish between cardboard shield rights, which doom anyone who relies on them, versus metal shields, which have a credible chance of protecting those who depend on them.
In an analyzed way, I didn't think Canada's law had reached the level of being a metal shield. It was more like a paper shield.
I can just repeat those criticisms, or I can cover the same best practices with an eye towards sharing some of the solutions and examples of functional provisions that have been adapted in other countries, whichever you think would be the most helpful, sir.
From that perspective then, let me share with you some of the solutions that have been made for the concerns that we addressed about this one. None of these are new problems, and there are many examples of ways to effectively achieve the criteria that I was advocating in the last testimony.
Let's go to the first one, context for free expression with no loopholes, so that restrictions based on formality, context, time, and audience aren't done arbitrarily, reducing the effectiveness of the law. Examples of where we met that criteria include the U.S. model, which protects against disclosures of illegality, gross waste, gross mismanagement, abusive authority, or substantial and specific danger to health and safety. The European model has also been very effective in that it allows a public freedom of expression when it's necessary because internal remedies aren't working. The U.S. model has cut all the loopholes involving job duties, formality, context, time of disclosure. If the information will make a difference under those laws, it is going to be protected.
With regard to subject matter, it's basically the same thing. The U.S. model protects any disclosure of unlawful activity, but based on violation of any law. There are no arbitrary restrictions. Some of the other nations have added to the scope of this. African nations such as Ghana and South Africa are protecting disclosures of threats to the environment. A relatively new development is catch-up protected speech categories, such as large-scale damage in Serbia, professional norms in Romania, and the public interest, generally, in Uganda. These allow us to make sure that the law doesn't limit how it can make a difference.
A third criteria that I thought was significant is protection against spillover retaliation because it does take a village to be effective. A lone wolf whistle-blower probably isn't going to make much difference except to destroy his or her own career. You need to protect that support base, not just the final messenger or ambassador.
The U.S. has in its laws protections for those who are about to blow the whistle, who are assisting in blowing the whistle, or who are perceived, even if mistakenly, as whistle-blowers. Serbia has separate articles in its whistle-blower law for associated persons, for those who are wrongly identified, and for those who are retaliated against just for asking the wrong questions, which are necessary for the research base. Relatives are protected in a number of the African nations' whistle-blower laws. Protection for all people who need the protection....
In the United States, we have a kind of piecemeal protection, but it does cover virtually the entire public and private sector. Other nations go much further. Serbia's covers public employees and private employees, so that's the military, the legislature, national security employees, corporate employees. It covers NGOs and the media. Anyone who is retaliated against for challenging abuses of power that betray the public trust is covered by that law. Korea's laws, Zambia's laws, and Uganda's laws all protect any person, not just national government employees.
Another significant criteria is confidentiality. The flow of information will dry up if you don't have effective protections. Here, if we look to the solutions that have been used, the United States and Serbia have both set the pace by having their laws not just protect the identity, but the identifying information that can be traced back to the whistle-blower. Before anything can be used, there needs to be advanced consent, unless it's necessary to satisfy legal process in which the whistle-blower gets an advance warning.
In fact, the Serbian law even says that the initial confidentiality provisions get carried over into any other government agencies that work on this. Korea actually has criminal penalties for those who breech confidentiality, which is a new dimension in a number of the more modern laws. This is a very significant criteria, and it has been developed.
With regard to unconventional harassment, over a third of the global whistle-blower laws now protect against civil and criminal liability, not just employment liability. There are so many ways to threaten, scare, or effectively silence a whistle-blower. Serbia's language in article 7 of their law is, I think, very illustrative. It's any action that puts the person at a disadvantage. You don't even have to be part of a list.
Anti-gag provisions so that other laws can't overcome the whistle-blower rights, whether they're agency regulations or other broad-based legislative laws, are very significant. The U.S. has five anti-gag provisions in their code and three in the Whistleblower Protection Act. I think Serbia's article 3 is illustrative. It says any provision that prevents whistle-blowing from occurring is null and void. That chilling effect has been the dimension for most of the best practices.
Another criteria is essential support services. Yes, you have an administrative remedial agency, but there are no limits on its discretion and there are no mandatory duties for it to help people. In the United States the remedial agency has a mandatory duty to investigate. It has no discretion to undermine the rights of those seeking help. It must explain its actions to the complainants. In Serbia and a number of other nations, every institution has to set up internal procedures and have somebody who will be there to assist in their implementation.
Burden of proof is the most fundamental cornerstone of any whistle-blower law. Canada does not have one. The reverse burden of proof is the global best practice.
Finally, for the purposes of this morning's presentation, there is the right to a genuine day in court. We're hoping that Canada may finally have, after a decade, the first opportunity for whistle-blowing in your country to get a day in court. This makes the law almost irrelevant, except potentially as a threat to those who are trying to enforce their rights.
Folks, the solutions to the problems that we've seen and summarized in this law do not involve a requirement for creativity. They just involve studying the record of 35 other nations that have been going through the same process of learning lessons and growing pains, and adopting the best examples. Our organization is here to help in any way that would contribute to that process.
Thank you very much to the committee for this opportunity to come and testify again on this very important law enforcement matter. That's what whistle-blower protection is really about, I think, with “law” and “enforcement” defined broadly. Making whistle-blowers front-line inspectors in every workplace and everyone who engages with government or business fully empowered to blow the whistle and fully protected when they do is very important in maintaining a rule of law.
I'd like to highlight again a couple of key points, and echo what my colleagues have spoken about, picking up on their testimony. First of all, to remind you again, more than 21,000 voters have signed a petition that Democracy Watch set up on change.org calling for 17 key changes by the federal government to protect people who blow the whistle, not only on government—I know you're focused on that law, protecting public sector workers—but also on business abuse, waste, and law-breaking. As the current banking service scandal shows, and several other scandals with business, we need this protection extended and strengthened for all private sector workers and anyone who engages with business, not just with government.
In terms of coverage, that includes covering yourselves, also covering political staff, covering employees but also contractors, suppliers, and anyone who gathers information, as my colleagues have mentioned. Everyone should be allowed to file their complaint directly and anonymously with a protection commissioner or agency, whether you maintain the one commissioner we have currently and extend it to cover everyone in the private sector that the federal government regulates or set up a separate office that would protect private sector workers. Complaints should be able to go to them directly and anonymously, not through anybody's bosses.
As well, as has been mentioned, reversing the burden of proof as to whether retaliation has occurred is very key and a best practice. A couple of my colleagues have talked about the commissioner being an executive branch officer; they're actually a legislative branch officer. The current Integrity Commissioner is an officer of Parliament, but still is there as a gate you have to go through to go to court. You should either decide to empower that commissioner to issue penalties and provide compensation to whistle-blowers, or allow people to appeal directly to court if the commissioner is not dealing with their complaint in a timely way.
The appointment of the commissioner, or again if a second office is set up, is very important as well. Currently the appointment process essentially allows the government, especially with a majority, to choose whoever they want. It is a political appointment, which allows for both patronage and cronyism, but also the government to appoint someone who will be a lapdog. There should be a merit-based, open, transparent, and independent appointment process. This is very key because the three commissioners we have had, the two past ones and the current one, come from within the bureaucracy.
The current commissioner has been there essentially from the beginning with the initial commissioner, through all sorts of wrongdoing in the commissioner's office, and as far as I know, has not blown the whistle on that wrongdoing himself. I don't have a lot of faith in the current commissioner.
The next commissioner must be appointed, and all cabinet appointees should be appointed this way, especially those enforcing laws. I highlight this because the Ethics Commissioner, Official Languages Commissioner, and Lobbying Commissioner, are all being considered for appointment now by the Liberal government. The cabinet is controlling the choice of all those watchdogs, who will mainly watch over the cabinet and what the cabinet does.
Ontario has the best practice approach for appointments of provincial judges: an independent commission that has six members that come from outside the government and seven members that are appointed by the government—which is the one flaw because the government should not be appointing a majority of that committee, called the judicial appointments advisory committee—but it's operated for 20 years. It does a merit-based public search for candidates who are qualified for these kinds of positions, including people from outside government. It recommends a short list of three, and the cabinet has to choose from that short list. The political control over the appointment is taken away, and you actually have independent judges appointed.
It's the only place in Canada where it's done. It should be done for every cabinet appointment across Canada, again especially in law enforcement agencies that are watching over government.
Turning to the protection commission or agency, I favour the model of giving them the power to impose penalties and require corrective action. They should be empowered and required to conduct audits and rule on all complaints publicly and in a timely manner. The identity of all wrongdoers should be made public, which is not currently the case but should be required. Also, the commission should be allowed to impose penalties and require corrective action of the heads of any government institution in terms of their internal system for showing whistle-blowers that they can blow the whistle and how, including requiring changes to their training system, etc.
They should also have the power to levy significant fines. In the public sector, it should be $100,000 to $200,000 fines for retaliation, and in the private sector, 40% of the business employee's annual salary should be the penalty to actually discourage this kind of retaliation.
Compensating whistle-blowers if their claims are proven is controversial, but the Ontario Securities Commission has done that. Up to $5 million can now be awarded in Ontario for disclosure of security fraud, a wrongdoing by publicly traded companies on the Toronto Stock Exchange, following the U.S. model. It is very important, I think, to at least adequately compensate them, not necessarily to go to the level of a reward but to adequately compensate them for the danger of sticking their neck out. Democracy Watch recommends that at least a minimum of one year's salary be the reward if such a whistle-blower's claims are proven.
Finally, we should allow whistle-blowers to appeal to court if the protection commissioner or enforcement agency that the commissioner has referred the whistle-blower to does not deal with their complaint in a timely manner. We should allow them to appeal to court directly and ensure an independent audit of the protection system by the Auditor General at least every three years.
I look forward to your questions about these and other changes. The devil is in the details of all of these changes. Whether the law says that a commissioner and everyone else involved “may” do something or “shall” do something is very important. It should say “shall” in every case, requiring people to fully and effectively protect whistle-blowers and ensuring high penalties for those who retaliate against them.
I wanted to mention that according to the website of the commissioner, there have been 653 disclosures under the act in the past eight years. These might not have all been related to the disclosures, but there have been 215 reprisal complaints during that period. That's a ratio of 3:1. For every three disclosures that have been made, there has been one reprisal complaint. Whether or not they all came from the disclosures, it's not clear, but that's the percentage.
Of those 215 reprisal complaints, only six cases have gone to the point of maybe having a hearing at the tribunal. That's a percentage of 2.9%. In the U.K., in the 18 years that law has been in place, 18.7% of people filing a claim under their whistle-blower law have had a hearing. That means that six times more people in the U.K. have gone to hearing than in Canada. That's a very low percentage. I think we need to study the barriers to having a hearing.
I apologize for a mistake when I described the commission as being an executive branch. It's legislative. Court protection is not the best practice. You need to have an agency, like the gentleman from Democracy Watch says, like Bosnia has and many other countries do now. The executive branch agency has the power and in Bosnia, they do it in 30 days and emergency cases are processed in seven days to assess the retaliation and protect the person. John and Tom can testify that each day that goes by for the whistle-blower, they fall further and further into the hole of career assassination, character assassination, ostracizing, brutal harassment, and very bad conditions at work. The case that was on the schedule yesterday at the tribunal, the Chantal Dunn case. I don't even know if that case happened at the tribunal yesterday. That case is from 2012. That's atrocious. You can't wait four and a half years for a case.
I was going to say that whistle-blower retaliation is a workplace hazard. If you have a factory where there's an unsafe bulldozer or an unsafe forklift, the labour inspector can go in and have it fixed immediately or if they don't have it fixed, they shut it down. If there's a restaurant with a dirty kitchen, they can go in and fix it immediately. In Germany, where I live, if you're a pregnant woman and you're fired for being pregnant, you can be reinstated the next day. There is no reason whatsoever that whistle-blower retaliation cannot be ameliorated and fixed through a workplace labour inspectorate system. The inspector could go into the workplace, assess the problem, and create an order to fix it, which is just like cleaning up a dirty kitchen, cleaning up an unsafe construction site, or any other workplace hazard. We are completely against this having to go to court.
Has anybody in the room ever gone to court? Nobody wants to do that. I have and for the smallest things. Nobody wants to go to court. It's very naive to think that whistle-blowers, who are damaged or might not have any money, have the will, the energy, and the money to hire a lawyer to go to court and wait, in the case of Chantal Dunn, four and a half or five years for a trial. Even in the U.K., like I mentioned, it takes 20 months. We are completely against any kind of court remedy, except as the last resort.
I want to thank the gentleman from Democracy Watch for the time.
That was a good point, and I will absolutely pass on the thanks to Mr. Conacher.
Certainly I think we've established that it's important to give people access to court but also that court is not necessarily the most effective or practical option in many cases.
Mr. Devine, you made the point that our committee need not be particularly creative and that to a large extent we can draw upon international best practices in setting up a whistle-blower protection system. On the other hand, we heard last night from Professor Brown in Australia that it would be a mistake to simply try to replicate the legislation of another jurisdiction and that we need to fit these international best practices and concepts into the Canadian institutional context.
I guess one aspect of that context I'd like to raise is the role of Treasury Board, because we've talked a lot about the Public Service Integrity Commissioner, who is an officer of Parliament, but the whistle-blower protection system in individual government departments and agencies is really administered and overseen by Treasury Board, which is the federal government entity that functions as the employer throughout the federal public service.
I'd like our international guests to perhaps comment on whether this is appropriate or how it could be reconfigured, but maybe I'll go first to Mr. Conacher who, I think, is more immediately familiar with the Canadian system and the role that Treasury Board plays in it.
Your concern is very well taken. The point of the Civil Service Reform Act of 1978, which set up the modern structure for the U.S. whistle-blower law, was to separate out the agency that had management responsibility from other institutions, which would be independent of those duties and therefore be able to concentrate, without conflicts of interest, on merit-system ranks, such as whistle-blower protection. It would have to be separate. Otherwise, you'd basically be asking an institution whose primary purpose may be at odds with your own interests to be responsible for providing justice when you challenge its alleged abuses of authority. It just doesn't work.
I'd also like to just do a PS on this idea of courts versus informal administrative agencies. It's not a matter of one or the other; you need both. In a global system of justice, there is no substitute for due process and the right to confront your accusers and present your own evidence on the public record. You can't cancel that out. It can be done through administrative due process or through a public judicial system through the courts.
But Mark is right that many people can't afford to go through the full-fledged production of going to court and having the trial. There has to be an informal low-cost administrative remedy. The key is to have controls on that remedy. Without those controls, the delays can be just as bad or worse than in court. The secrecy can be absolute, unlike court, and further, they can turn into traps, Trojan horses. Further, they can actually create victims and investigate the whistle-blowers instead of the retaliation.
The problem with Canada's administrative remedy is that it is uncontrolled.
The one difference between the public and private sector is that in the public sector you want to have, for every agency or institution, a dedicated person regardless of how big it is. In the private sector many laws say, okay, if a company is over 50 employees, or 100, or has x
amount of dollars of annual revenue, you have to have an appointed person. If it's a mom-and-pop shop with three employees, it doesn't make sense to have a whistle-blower intake person. You need to figure out the threshold for requiring a company to have a point person.
To answer your first question, you want to have as many disclosure channels as possible. I find your law, as currently written, very confusing. You can report this here, report that there. You don't even want to put a lawyer through having to read this law. It's very complicated. The Australian law also is very complicated.
The notion of the three-tier system—internal, regulatory, then external—could be modified to your liking. If it's reasonable and possible to report internally, that should be certainly encouraged. But as Tom said earlier, you don't want to take away the right to free speech of the employee and the worker. If they're not comfortable reporting internally, and they have a reason for that discomfort, they should be able to go to the regulator directly. In cases of extreme or dire emergencies—threat to life, threat to the environment—or if evidence might be destroyed, as John mentioned earlier, people should have the right to go to the public without reporting internally or to the regulators.
Thank you all for coming.
Welcome, Mr. Worth.
My questions are threefold, and I'll ask them now so that I do not have to wait.
When you are giving us examples of successful protection, do you have data that tracks the type of whistle-blower, whether it's financial, environmental, or whatever, and what the intersectionality is? Are they women, men, financial officers? Who goes out and does it? Is there an evaluation mechanism for the whistle-blower act so that you could go and check it? I was looking at the U.S. one that Mr. Devine gave us, and it was in 1989 that they overhauled that whole thing.
Mr. Worth, I'll start with you, and then I'll go to Mr. Devine, Mr. Devitt, and Mr. Conacher.
It is absolutely essential.
Actually, you do have some data on your website about the number of disclosures and reprisal complaints and so forth. What's helpful—and John pointed this out in Ireland—is the reason that reprisal complaints were denied or disclosures were ignored, the reasons that the people did not get compensated, the reasons that they did not get whistle-blower protection. This can help to expose holes and gaps in the protection system. I think that your data, which you have on your website, in your annual report, which is very good, needs to include more specific details, of course, without revealing any information about the whistle-blowers.
What actually happened to the disclosure? Was it investigated? We see many countries in eastern Europe and Latin America where we had this many disclosures, which led to x, y, z number of prosecutions and convictions, investigations, tracked all the way down the line. It was the same with reprisal complaints. How many were accepted? How long did it take? How many were denied? What was the reason? You need to get more information as to the outcomes of the disclosures and the retaliation complaints. It should all be made public every year and in a very easy-to-digest fashion, and we're seeing more of that. This has been a big development all over the world, more transparency in the entire whistle-blower system.
The first thing is to make sure that the law protects all the people in the village that you want to and be working with the whistle-blower to prevent isolation. That's the primary requirement, which means that people who are mistakenly perceived to be whistle-blowers, people who assist the whistle-blower, and people who are providing supporting evidence be protected as well.
The second thing is leadership. So much of the problem with whistle-blowing is that it's perceived as disloyalty to the organization, and therefore, the dissent is a threat to the jobs, welfare, and careers of colleagues and co-workers. Most whistle-blowers, though, are acting in defence of the organization because they're afraid that the abuse of power is going to backfire and hurt everyone.
When a leader establishes an environment through communicating that he or she wants to know these problems before they get worse, that we can't fix these things or prevent disasters if we're blindsided, and let's have a free flow of information so that we can do the right thing and operate most effectively, when that sinks down and the labour force believes it, it is the right environment to be challenging the isolation that's fatal to whistle-blowers. This idea of having an internal office can be one of the critical front lines for that. The internal officer can be very dangerous. It can be a trap. It can be somebody who is basically just gathering information and has a conflict of interest, and then the disclosures to that person will spark retaliation and cover-up before it gets to an objective audience. However, that officer also can be an invaluable resource for the people. It needs to be structured effectively.
A question was asked earlier about how to do that. I would refer you folks to the criteria for the International Ombudsman Association because these internal agency officers are very similar. The two most significant functions of that are, first, that they have direct access to the organizational leadership—if they're not buried within a bureaucracy, it takes away the potential for plausible deniability—and second, that all communications to them and by them are automatically protected activity under the whistle-blower law because that can be an extremely dangerous job.
This is a new initiative, which we designed, aimed at getting commitment from employers across the public, private, and non-profit sectors to respond and act upon reports made to them and to ensure that people don't suffer as a consequence of reporting.
We have around 30 organizations from the public and non-profit sector signed up so far. The Department of Justice and Equality and the Department of Public Expenditure Reform are sponsoring the initiative. It's in a trial phase. The employer has to sign a pledge, which they make public, to the effect that whistle-blowers won't suffer and that action will be taken in response to concerns. They need to make their staff aware of the availability of free legal advice from Transparency International or any other organization that might be in a position to provide it.
Also, there is an opportunity to come to us when a whistle-blower suffers reprisal or is not satisfied with the response of the employer. We then can file a report to the employer, including the chief of police or senior police officers, to highlight the experience of the individual, and as Tom pointed out, to avoid the opportunities for plausible deniability. In future, senior police officers won't be able to say they did not know that a whistle-blower was suffering as a consequence of speaking up.
One of the important features of this is that they also have to inform their primary stakeholders of their participation in this initiative so that Parliament will be aware that the police service is engaging in the initiative, as will the Policing Authority and the police ombudsman. Each of those different agencies will also be signing up; thus, if a whistle-blower from the police ombudsman or the Policing Authority wants to contact us, they can do the same.
We're trying, then, to establish a standard by which organizations will comply. We'll provide them with resources, a checklist, a self-evaluation, a tool kit, and then will provide them with an annual report based on the reports that are made to us and recommendations arising from the initiative.
I'd be more than happy to share more information with you at a later stage.
Let me start by saying that, after listening to you, I wouldn't want to become a whistle-blower. Even if I had nothing to lose, I think that I would still come out a loser. No matter which country we are talking about or what its legislation or regulations are, I don't have much confidence.
I sometimes get the sense that the whistle-blower regime is a huge elephant. My definition of a whistle-blower is someone who indeed blows the whistle, but who does not become responsible for that action. The impression I have, however, is that, right now, the whistle-blower bears all, or nearly all, the responsibility. In many cases, the onus of proof is entirely on the whistle-blower. Things may be slightly different in some countries, where distinctions exist.
Mr. Devine, when I went to the Government Accountability Project, or GAP, website, I saw that people could report fraud or other illegal activity online. That made me wonder whether people weren't afraid to fill out the form on the Internet. All of the technical and legal details are listed, and then, it says that everyone is shielded. The whistle-blower, however, receives little or no protection, at least initially.
In the case of journalists, the public or confidentiality aspect hardly ever comes into question. Everyone knows that, when information is revealed to journalists, they usually take steps to protect their sources. In this situation though, a mechanism is being created to protect the system within the system. Frankly, I cannot get past the fact that the results are so poor, given all the costs and people involved. My sense is that very little is achieved in the way of results.
Mr. Devine, I don't know where you stand, but, on a philosophical level, I don't think we're moving towards practical solutions for whistle-blowers around the world.
Yes. This is not a new phenomenon. As long as we've had organized societies, power's been abused and people, sooner or later, have stuck their necks out and challenged it and said, “This is wrong”. If they do it with weapons, sometimes they're called “revolutionaries” or “terrorists”. If they do it just with words, it's “freedom of speech”. This is always going to happen, and it's always going to be dangerous, because those who are threatened by it are never going to be passive. The challenge is to minimize the risk as much as possible for the responsible disclosures that will help the public good.
In terms of your questions on online disclosures and protection, those are facilitated by the U.S. law, which protects disclosures based on their contents, unless the information is classified or specifically prohibited by law. Except in those two contexts, you're eligible for free speech protections when you engage in public freedom of expression, which could be on television or through an online disclosure.
As far as few results go, this is a great question because the lack of results in every study that's ever been done is identified as the primary chilling effect. People remain silent observers instead of challenging abuses of power that betray the public, not because they're scared but because they don't think it will make any difference. With an effective whistle-blower law, you can get results.
Let me give you a brief menu of some of the results in the United States from our whistle-blower law.
The commissioner is an officer of Parliament, who is tied too much to the executive branch because the executive branch, the cabinet alone, selects the person, and that's the conflict of interest that others have talked about through the whole system.
Just to talk about one other thing that Tom Devine raised, and that is these internal disclosure people. Compare that to the access to information system. Under our Access to Information Act, there are employees who are access to information officers. Their job is to handle access to information. Under the whistle-blower protection law if someone is designated, they're still doing their other job, they're still within the whole hierarchy, they're hired by their bosses, and they're looking for promotion in their other job. They're just designated to be the internal disclosure person.
It would be great if those people could be the ombudspeople that Tom Devine has talked about, but they're not independent enough to be that.
One idea may be that the commissioner should be selecting those people, that those people should be made like access to information officers where their full-time job is to only do this. Have the commissioner select them, and not have their deputy minister or their deputy head be choosing them, to give them the independence to be that ombudsperson. Because right now I don't trust that those people, in the really hard cases, are not going to feel the conflict of interest from wanting a promotion to continue in their job, because they're just designated to be this internal disclosure person.
That's why I emphasize so much a central office that's a clearing house that everyone is promoted and educated about regularly, not just once when they're hired. When you're talking about some of the integrity at work initiatives, they're getting at the behavioural psychology of changing the culture and nudging people—which I'm sure you've heard about—governments nudging citizens to comply with laws. We need nudging within government as well.
One of the things I think should be done is that whenever a decision-making process begins, not only should people be signing the values and ethics code of the public service again but also everyone who is involved is handed a statement that they have a right to blow the whistle if there is wrongdoing in this process. That's how you nudge people and remind them. I just don't think that internal officer is ever going to be a person unless they become like an ATIP officer where they are hired independently—ATIP officers are not hired independently—where it's their sole job. Otherwise, they'll have the conflict. I think a great idea is to have the commissioner be able to hire all those people in every government institution.
You may say that's going to cost too much. Then you have to have a larger central office that everyone is educated about regularly, multiple times a year, that this is the place to go if you have any questions, and as soon as you contact them, even anonymously, you and all your colleagues you may have talked with about it are fully protected.
In an ideal political system, the convention of ministerial responsibility would be absolute, meaning that a minister would resign as soon as their department committed a wrongful act. In England, that's how it works, but I'm not sure whether the responsibility is consistently applied, as was the case a few decades ago. Conversely, in the U.S., the responsibility lies at the bureaucratic level, and the government is not responsible for anything.
My comment transcends all partisanship and all government parties. Is the whistle-blower problem in Canada not due to the fact that absolute ministerial responsibility no longer exists? In other words, ministers don't step down when problems occur in their departments, unless the media outcry is strong enough.
We don't follow the honourable convention whereby a minister resigns when their department makes a mistake. Ironically, departments have an internal mechanism where employees have to first report the wrongdoing to a designated person, who then notifies the deputy minister. The deputy minister, in turn, notifies the minister. That chain of command is doomed to fail because everyone knows the minister will do everything in their power to push the blame down the chain, because they don't want to resign.
The problem is due to the fact that Canada does not follow the constitutional convention of the Westminster system. Is it not?
Yes. I think the point of the flaw is.... I don't think a minister should be accountable for everything that people in the bureaucracy do, because sometimes they're not informed. However, if they are informed about it, they should be held accountable. The real crux of the matter is that the deputy ministers and assistant deputy ministers are selected by the cabinet.
The Gomery commission—after reviewing the sponsorship ad scam spending scandal—recommended that deputy ministers be selected through an independent commission and given a fixed term of office, and that they should only be able to be dismissed with cause. That is key to having an independent public service. Everybody below assistant deputy minister and deputy minister knows that to reach the top, you have to please the politicians. That's why it's so key to have fully independent officers if you really want those internal people to be ombudspersons.
The ATIP officers are there already. Why not designate them as the people? They have more independence and they're within a system of access to information, which is part of whistle-blowing and the public's right to know. It's flawed.
The Gomery commission recommendation was responded to by the gang of 60 who came out—former prime ministers and deputy ministers saying you can't do this and deputy ministers have to be blindly loyal to their ministers. No, they have to be loyal to the rule of the law and upholding what's right and in the public interest. That's a fatal flaw in our system currently, and it means the public service is not as independent as it needs to be. Whistle-blower protection cannot work without a fully independent office for people to go to.
Thank you very much. Unfortunately, colleagues, and to our witnesses, we're out of time.
I do want to comment, particularly to our witnesses. When this committee started undertaking a study on the current whistle-blower protection legislation, we all thought, at the committee level, that it would only take a few meetings. It has expanded far beyond that in no small part thanks to the testimony of individuals like yourselves.
This has been of great benefit to our committee. The committee members now fully understand the fact that we have a big job in front of us in terms of reporting back to the government as to potential changes and perhaps—I don't want to speak without the consent of the committee—necessary changes.
Should you have any additional information that has not been covered by this committee, once again, I would encourage you to submit that information to our clerk, anything you think would assist us in our deliberations. Thank you again.
Committee members, we will suspend for a couple of moments, and then we'll go in camera for committee business.
[Proceedings continue in camera]