Integrity Commissioner's Rebuttal
Canada’s disclosure protection regime and understanding our legislative framework
OTTAWA—Some articles have been published recently about Canada’s disclosure protection regime. I would like to clarify some key points to the readers of The Hill Times and explain the legislative and policy framework within which my office works.
First of all, I wish to emphasize that the views of advocacy groups supporting disclosers are important to my office, and I want to continue to actively seek them out.
I strongly believe that these groups have a unique and critical responsibility. Yes, our roles and perspectives are different, but both are essential in responding to the needs of disclosers.
In fact, I have just met with representatives of Canadians for Accountability, FAIR (Federal Accountability Initiative for Reform) and Democracy Watch to discuss our work and our legislative framework in more detail. These three organizations have also been invited to our 2010 Symposium which will bring together key players and advocacy groups from the U.S. and the U.K.
In addition, and very importantly, we hope that Canada’s advocacy groups will contribute to the five-year independent review of the Public Servants Disclosure Protection Act (the Act) in 2012, which will be carried out under the leadership of the Treasury Board Secretariat.
It is important for public servants, and indeed all Canadians, to know that the act offers strong protection to disclosers against reprisals. The act is clear: subject to any other Act of Parliament and to the principles of procedural fairness and natural justice, my office must protect the identity of all those persons involved in a disclosure process to the extent possible.
In addition, information created in connection with a disclosure or an investigation into a disclosure is fully protected and exempted under the Privacy Act and Access to Information Act.
Moreover, the act expressly prohibits reprisals. This is an indication of the seriousness of Parliament in creating a strong disclosure protection. My office has exclusive jurisdiction to handle reprisal complaints.
After a complaint is investigated, I decide, based on considerations identified in the act, if a referral to the Public Servants Disclosure Protection Tribunal is warranted. The tribunal has broad remedial and disciplinary powers, including reinstatement, compensation for pain and suffering and termination of employment.
The creation of the tribunal is another indication of Parliament’s intention to provide strong protection to disclosers; the tribunal’s very existence should serve as a deterrent to reprisals. Although no case has yet been referred to the tribunal, I will not hesitate to do so if, having regard to all the circumstances of the complaint, it is in the public interest to do so.
Questions have been asked about my ability to initiate an investigation of a disclosure on my own. Under the act, my office responds to disclosures of wrongdoing that are made directly to us. We cannot investigate without having received a formal disclosure. And it is essential to keep in mind that disclosers have options under the act to bring wrongdoing to light. The choice is theirs: some choose to use internal channels and others come to us. The act also contemplates going to the media in special circumstances.
From our experience to date, we believe that the majority of disclosers do not want a long and formal investigation; they just want the wrongdoing to stop. They are motivated by good faith and by a belief in the integrity and importance of our public institutions. At the same time, they fear the consequences of a disclosure on their co-workers, their organization and more immediately on themselves and their careers.
We recognize that disclosers are in a very difficult position. Our action has to be timely and appropriate. Not every disclosure requires a formal investigation, but many do require further action on our part. Also, in some instances, after careful deliberation and with the full support of the disclosers, we have achieved early resolution of cases in the context of an investigation. Informal resolution does not mean that the disclosures are not seriously and appropriately addressed, or that we have negotiated away a wrongdoing. This process does not replace our investigative powers, it enhances them.
People don’t necessarily understand our mandate. When they knock at our door and we cannot assist them directly, we try to help them find the right place to go so that their concerns can appropriately and effectively be dealt with. Not all perceived wrongs meet the definition of wrongdoing under our act.
Finally, I would like to assure readers that our goal is neither to make the front page with a sensational case nor to shut down institutions. This does not mean that we will not intervene appropriately and quickly to resolve a case within our legislated framework. Our ultimate goal is to enhance public confidence in our public institutions and in the integrity of public servants. We do this by supporting awareness and prevention of wrongdoing, and in responding quickly, fully and effectively to those cases in which wrongdoing occurs. And building trust in our public institutions is a shared responsibility among all of us.
We hope that the Canadian advocacy groups support our efforts in this regard, and we look forward to continuing to be informed by their perspectives and experiences.
Christiane Ouimet is the Public Sector Integrity Commissioner of Canada.
The Hill Times
