March 22, 2004
Ottawa, Ontario

Q’S & A’S

Issue:

The Prime Minister and the President of the Privy Council have committed the government to introduce legislation into the House by March 31, 2004, establishing a mechanism for the disclosure of wrongdoing in the public sector and introducing the protection of persons who disclose the wrongdoing.


This is a substantive Bill that protects employees and encourages them to come forward if they have reason to believe that wrongdoing has taken place.

Old vs. New Regime

Q1. How does the proposed legislation differ in any substantial way from the Internal Disclosure Policy already in place?

A1. The draft legislation differs in a number of substantive ways:
- It applies to all the federal public sector, whereas the policy applied only to the core public service.
- The bill establishes substantial protections in law from reprisal for good faith disclosure and outlines the process for addressing reprisals if it is believed they have occurred.
- It establishes a Public Sector Integrity Commissioner. It confirms the independence of the commissioner by having his or her appointment approved by both Houses of Parliament.
- It includes reprisal as a definition of wrongdoing.
- It permits all public sector deputy heads and chief executive officers to establish a code of conduct consistent with the code established by the Treasury Board. It defines serious breaches of that code as a wrongdoing.
- If a case of reprisal is confirmed, the chief executive officer of the federal organization involved can be ordered to take all necessary means to reinstate the complainant and supply financial compensation for losses incurred as a result of the good-faith disclosure.
- It requires that all public sector deputy heads and chief executive officers cooperate with any investigation by the commissioner or senior officer and provide all relevant information. There are also prohibitions in the bill against knowingly making false statements, destroying documents, or wilfully obstructing a senior officer or the commissioner in carrying out their duties.
- It strengthens the confidentiality that the commissioner can offer to employees by making his or her functions an investigative body for the purposes of the Privacy Act and the Access to Information Act. This means that there is greater discretion regarding information that the commissioner can protect, including the identity of the person making the disclosure.

Q2. What are the differences between the new Public Sector Integrity Commissioner and the former Public Service Integrity Officer?

A2. The main differences are as follows:
- Greater independence of the commissioner by having his or her appointment approved by both Houses of Parliament.
- A broader mandate to accept disclosures and investigate within the wider public sector.
- An increased capacity to make special reports to Parliament beyond the annual reporting requirement of the current officer.
- The commissioner will have the ability to make reports to ministers of departments or the boards of Crown corporations when the deputy head or chief executive officer is not responsive to the recommendations. The commissioner may also make special reports to Parliament if needed.
- If in the course of dealing with a disclosure the commissioner has reason to believe there are other wrongdoings being committed, the commissioner can open an investigation into those other wrongdoings. For example if a number of similar disclosures lead the commissioner to suspect a systemic or other problem, he or she could launch an investigation.
- The commissioner has standing in any proceedings to deal with reprisal. For example, if a reprisal complaint has been made to the Public Service Staff Relations Board, the commissioner will have standing to make submissions.
- The commissioner is also authorised to report immediately to the appropriate Minister if he or she uncovers a situation that may cause imminent risk to health and safety of the public or to the environment.

The Working Group’s Recommendations

Q3. How has the government followed the recommendations of the Working Group on the Disclosure of Wrongdoing?

A3. The government drew inspiration from the recommendations of the working group and was impressed by the quality of their work. In drafting this bill, the government has followed the spirit of the majority of the recommendations of the working group on the disclosure of wrongdoing.

Q4. While the working group recommended giving public service employees the option of taking allegations directly to the integrity commissioner, your proposed legislation requires them to first exhaust all internal mechanisms. Does this not effectively discourage whistle blowing by requiring public sector employees to come forward within their own departments? Why create so many barriers?

A4. Under the proposed legislation, a federal public sector employee may disclose a wrongdoing to the commissioner if the person believes on reasonable grounds that it would not be appropriate to disclose the matter to his or her supervisor or the senior officer, or if he or she feels that the matter has not been appropriately addressed. An employee may also make a disclosure to the commissioner if his or her organization is too small to create its own internal mechanisms. The requirement to follow internal procedures is therefore not absolute. However, employees should normally use and be able to trust internal mechanisms before going to a third party. A federal public sector employee – including those in Crown corporations – should where possible disclose the matter to his or her supervisor or to the appropriate senior officer.

Q5. Why must the disclosure commissioner cease any investigation and pass it off elsewhere if the evidence takes him or her outside the public service when the working group specified the investigative powers should permit follow-up when the evidence leads outside?

A5. The legislation covers employees of the federal public sector, including deputy heads and chief executive officers of Crown corporations. There are other mechanisms for addressing wrongdoing relating to people who are not employees, such as judges, MPs, and Ministers and their staff. For example, the Canadian Judicial Council covers judges and the ethics counsellor covers Ministers. The Auditor General, Attorney General and RCMP are also competent to address issues relating to people who are not employees of the public sector.

Q6. Why have you decided not to give the integrity commissioner the power to compel public servants to provide information as the working group recommended?

A6. The legislation does oblige employees and deputy heads to provide to the Commissioner information and access. It does so in a fashion enforceable via disciplinary action and reports to parliament. Individuals who do obstruct the course of an investigation could face sanctions, including criminal sanctions.

Q7. Why is there no time limit requiring deputy heads to respond to recommendations made by the commissioner, as recommended by the working group?

A7. The length of time to respond to recommendations depends upon the nature of the case. For example, a grievance procedure already underway could require resolution prior to the deputy head’s response to the commissioner’s recommendations. In other cases, a response may be very rapid. Instead of specifying a period of time, the legislation allows the commissioner to report to the Minister or Board of Governors if there has not been timely consideration of his or her recommendations.

Q8. If you aren’t requiring departments to provide adequate and appropriate financial resources, support and training as recommended by the working group, are you effectively not choking off any real impetus for change?

A8. Many organizations already have established mechanisms, such as internal procedures and the appointment of senior officers.

Reprisal

Q9. What remedies are available should a whistleblower have reason to believe that he or she has been subject to reprisal?

A9. Under the proposed legislation, a public sector employee can make a complaint to the commissioner or a board or tribunal that already has a mandate to address staff relations and workplace issues. For example the Public Service Staff Relations Board deals with complaints for the federal public service, while the Canada Industrial Relations Board handle cases for Crown corporations. These organizations have the tools, skills, and competencies to determine a case and dictate its resolution. If the board or tribunal found that the employee has been subject to reprisal, they would have the power to order the employee reinstated in his or her position or receive other restitution such as back pay or the return of any penalties or fines, as well as some damages.

Q10. How will you ensure than any hint of reprisal, however subtle, can be appealed regardless of when the reprisal happens?

A10. Reprisal is very subjective, especially subtle forms, and often difficult to prove and investigate. The proposed legislation provides parameters around making a complaint or concern of reprisal. A complaint must be made to the appropriate board or tribunal within 30 days after the date on which the complainant knew that reprisal was taken, or if a complaint has been made to the commissioner, within 30 days after the commissioner reports his findings. These organizations have the tools, skills, and competencies to determine a case and dictate its resolution

Costs

Q11. How much will the new Commissioner cost taxpayers?

A11. Currently, the office of the Public Service Integrity Officer has an annual budget of approximately $1.5 million. Given the proposed increase in mandate and workload, an additional $500,000 a year may be required for the office’s budget. Depending on the caseload, the commissioner could make a business case to increase the budget.

Communicating With Employees

Q12. How will the government inform public sector employees about this new legislation?

A12. If the legislation is accepted, we have indicated the need for resources for learning and professional development for human resource professionals and senior officers as well as marketing, and building awareness for the provisions of the act. As with all government expenditures, this request would require a business case and be examined within the context of the government’s expenditure management review process.

Interim Measures

Q13 What measures is the government taking to protect whistleblowers who appear before Parliamentary committees?

A13. The government has amended the Treasury Board Internal Disclosure Policy such that no employee shall be subject to reprisal, including either administrative or disciplinary measures, for having made a good faith disclosure, or in the course of a parliamentary proceeding or an inquiry related to the 2003 report of the Auditor General.

Bargaining Agents

Q14. In addition to your proposed legislation, will you accept union demands to put whistleblowing protection into collective agreements?

A14. If the legislation is adopted, there would appear to be no reason to include protection for disclosure of wrongdoing in collective agreements. The legislative framework would be much more powerful than clauses in collective agreements.

Q. 15 What consultation has been undertaken?

A. 15 Unions – from both the core public service and Crown corporations - and other stakeholders – including departments and Crown corporations - have been briefed about the proposed legislation. It is expected that the legislative committee that reviews the Bill will enable further consultation with and input from a wide range of interested parties.