Five things Canada’s Public Sector Integrity Commissioner’s Office should do right now

Canada’s Integrity Commissioner Christiane Ouimet needs a radical change of strategy. First, she should demonstrate an understanding of the whistleblower’s plight.

David Hutton and David Kilgour – October 19, 2009

Two years ago, the public sector integrity commissioner was created, with a mandate to protect government whistleblowers and investigate allegations of wrongdoing. The Public Servants Disclosure Protection Act (PSDPA) was a much-touted component of the Conservatives’ promised cleanup of government and was sponsored by then-Treasury Board president John Baird, who described it as the “Mount Everest” of whistleblower protection.

However, many consider that the legislation is not working and that the commissioner has not delivered on the most important aspect of her mandate, in spite of having formidable investigative powers and ample resources. In her annual reports to parliament the commissioner describes an extensive program of activities. But for two years running, her office has uncovered no wrongdoing and found no cases of reprisal against whistleblowers.

Ministers and senior bureaucrats may be relieved that she has not reported any incidents that might embarrass them, but the damaging perception remains that whistleblowers are not being protected.

The credibility of
Transport Minister John
Baird’s whistleblower
protection regime is
thus fading fast.

For example, a recent CBC Fifth Estate broadcast investigating lax oversight of air safety by Transport Canada showed Transport Minister Baird asserting that whistleblowers are protected by the law and boasting that he was responsible for introducing this legislation. Minutes later a Transport inspector was heard refusing point blank to talk about his concerns on camera because “Whistleblower protection under the federal legislation is a joke and everybody knows it. I would be crucified by the federal government and I’d never get employment anywhere.... My life would be ripped apart.”

The credibility of Baird’s whistleblower protection regime is thus fading fast.

This creates another problem for the commissioner’s office: declining credibility may lead to further atrophy of its investigative work. Unlike the auditor general, her office cannot conduct investigations on her own initiative: it can only investigate disclosures brought to it. So her office may be caught in a kind of death spiral: less credibility; fewer disclosures, hence even fewer investigations, and less justification for its existence.

At some point the Parliamentary oversight committees must start asking some serious questions.

The commissioner needs a radical change of strategy. If she is prepared to do so, there are many options open to her even now. Here are a few of the practical steps she might take.

1. Demonstrate an understanding of the whistleblower’s plight

The commissioner’s problems begin with her public persona. Whistleblowers scrutinizing her public remarks are not reassured that she has an understanding of their agonizing plight and the courage that’s required to come forward. Rather they sense a close identification with senior bureaucrats, and perhaps even hostility towards whistleblowers. For example, in public testimony to parliamentarians the commissioner flatly stated that the word “whistleblower” is a pejorative term.

Justified or not, this image is a liability for someone whose success depends upon winning the trust of public servants. The commissioner should spend more time with some real whistleblowers: to see what type of people they are, understand what they have been through, and develop greater empathy for their plight. Some genuine outreach to organizations that regularly work with whistleblowers would help. She might then be able to convey that she understands the issues from their point of view.

2. Advocate for more effective legislation

No legislation is perfect, but in our view the legislation supposed to protect whistleblowers—the PSDPA—is a mess: full of loopholes, stacked against the employee and shrouded in impenetrable and unjustifiable secrecy. For each strong feature—like the commissioner’s independence and her strong powers of investigation—there are countervailing loopholes nullifying the benefit.

FAIR and other critics have pointed out the flaws in detail from the outset and evidently convinced the Senate, which subsequently submitted 15 substantive amendments that would have greatly improved the legislation. These amendments were all rejected by the government.

But when the commissioner was asked by Parliamentarians how she would improve the law, she raised none of the serious shortcomings that others have noted. Her only concern was to do with an administrative inconvenience: the short 15-day time limit for her office to decide whether to investigate a complaint of reprisal. By failing to acknowledge the PSDPA’s shortcomings, she gives the impression that she is content to administer legislation that does not work.

3. Be more proactive in seeking to uncover cases of serious wrongdoing

The commissioner has stated that her office wants to avoid “shutting down institutions” – apparently indicating a desire to minimize disruption to organizations under investigation. But some see this as code for “don’t worry, we are not going to cause problems”—since any finding of wrongdoing must be reported to Parliament, undoubtedly leading to harsh scrutiny of the department in question.

The commissioner has even developed a new process that does not appear in the legislation—dubbed “Informal Case Resolution”—which allows her office to intervene informally and discreetly without invoking its investigative powers.

This is not acceptable. The public needs assurance that allegations are being investigated thoroughly and the results reported without fear or favour. The commissioner should be proactive in uncovering wrongdoing, rather than avoiding controversy.

She should for example seek out publicly-identified whistleblowers.

When government whistleblowers are featured in the media, the commissioner should contact these individuals with the aim of encouraging them make formal disclosures to her office. That’s the kind of proactive approach that other office-holders evidently use, such as Ontario’s Information and Privacy Commissioner Dr. Ann Cavoukian and Ombudsman André Marin.

There is nothing in the legislation to prevent the commissioner from adopting such an approach. It seems absurd that the public knows the names of many whistleblowers—and their allegations—yet the commissioner may have no communication with them.

She should also focus on troubled departments.

Rather than dealing with each case in isolation, she should look for clusters of concern and integrate the information received from multiple whistleblowers, thus obtaining mutually-corroborative evidence and exposing pervasive abuses.

It should be easy for the commissioner’s office to identify the most troubled departments. Organizations like FAIR that get involved when employees seek help—as well as counsellors, psychologists and labour lawyers—can usually name without hesitation the organizations seen as the least competent and most likely to abuse their employees’ rights.

4. Establish a useful measure of success for the PSDPA

The legislation requires the commissioner to establish performance measurements for her office, but her annual report states that this has not yet been done. Last year FAIR proposed to the commissioner’s office one useful measurement: a survey of government employees to determine the perceived level of wrongdoing within the public service. This would be easy and inexpensive to do—a simple follow-on to the employee opinion surveys already carried out for the government by Statistics Canada—and it’s been done elsewhere.

Such a survey would show the overall level of wrongdoing perceived by public servants; which departments need to take action; and it would reveal trends over time—are these departments making progress or not. It would also include questions that reveal whether employees know about the Commissioner and would trust her office sufficiently to make a disclosure if they suspect wrongdoing.

Finally, this survey would put the onus for preventive action where it belongs: with the department heads, to ensure that codes of conduct are respected and enforced within their own departments. And it would reveal what effect, if any, the PSDPA is having on the integrity of our institutions.

Such action would demonstrate that the commissioner is serious about getting the kind of results that matter to Canadians.

5. Make the case for prompt settlement of outstanding whistleblower lawsuits

The commissioner’s annual report sets out many reasons why public servants may be fearful to approach her office. But it makes no mention of several notorious cases—virtual ‘public executions’ of whistleblowers—which send a chilling message to all public servants.

When FAIR’s founder Joanna Gualtieri sued her former bosses for harassment after she blew the whistle on waste and extravagance in Foreign Affairs in the early 1990s, Justice Department lawyers posed more than 10,500 questions to put to Gualtieri, thus running up her legal costs and further damaging her health. Incredibly, her lawsuit is now in its twelfth year.

There are the cases of Dr. Shiv Chopra and his two colleagues, who testified to the Senate that Health Canada was pressuring scientists to approve drugs without legally-required evidence of safety. All three were later fired simultaneously and have spent the past five years before the Public Service Labour Relations board as their union battles to get their jobs back. Again the government seems to be sparing no expense in funding the defence of Health Canada managers accused of orchestrating wrongful dismissals.

Ironically, it was cases such as these that prompted Parliament to pass the legislation that created the commissioner’s job.

The commissioner cannot pretend that these cases do not impact on the credibility and effectiveness of her office. What public servant will ever believe that the government is sincere in its claim to protect whistleblowers, when these well-known individuals—celebrated as heroes—are still being persecuted in the courts? Although not part of her formal mandate, the commissioner should urge the Prime Minister to instruct government lawyers to settle such cases promptly and fairly.

Conclusion

The performance of the commissioner’s office is a serious disappointment to the hundreds of thousands of honest public servants who were promised a workplace free from repercussions for being honest. It leaves abandoned many courageous public servants who have spoken out against wrongdoing, only to be rewarded with career-ending reprisals. It is also, in our view, a betrayal of the public interest, doing little to give meaning to the words ‘transparency’ and ‘accountability’ within our federal government.

The commissioner’s office may still salvage its reputation and relevance, but time is running out. Let’s hope it will adopt some fundamental changes to its strategy. Anything less will be seen as mere window-dressing.

David Hutton is executive director of FAIR and David Kilgour is a former secretary of state.