One of Ottawa’s open secrets is on the table again. The people mandated to help and protect whistleblowers within the federal public service evidently do the opposite.
This conclusion should be drawn from the recent Federal Court decision that underscores how whistleblowers are ignored, sidelined and silenced by the very body whose mandate it is to protect them and to expose wrongdoing.
The Hon. Madam Justice Mactavish ruled in El-Helou v. Courts Administration Service et al. that the Office of the Public Sector Integrity Commissioner (OPSIC) failed in its duty, under the Public Servants Disclosure Protection Act (PSDPA), “…to ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures…”
The first PSDPA allegation to be referred by the Integrity Commissioner to the Public Servants Disclosure Protection Tribunal was “Mr. El-Helou’s allegation of reprisal relating to the withholding of his Top Secret security clearance...”
OPSIC’s investigation was undertaken by three different investigators over a 21 month period. Mr. El‑Helou was assured in writing by investigators:
a) that he would be made aware of the substance of evidence obtained by the investigation and provided an opportunity to respond to findings;
b) that his allegation – that he was threatened with another security check unless he complied with his employer’s “wishes” – was investigated and would be included in the investigator’s report; and
c) that the former Chief Administrator of the Courts Administration Service (CAS) would be interviewed.
The Office of the Public Sector Integrity Commissioner broke all three promises.
The Hon. Madam Justice Mactavish judged that:
a) not to give Mr. El‑Helou the opportunity to respond to the investigator’s findings “…is a clear breach of the common law duty of procedural fairness”;
b) the investigator’s failure to report her investigation of Mr. El-Helou’s allegation regarding a second security check meant this allegation was never considered by the Commissioner in his decision; and
c) David Power, the former CAS Chief Administrator, was never interviewed.
Her Lordship concluded that Mr. El‑Helou’s legitimate expectation of procedural fairness had been thwarted, and that “the investigator failed to investigate obviously crucial evidence.”
Her Lordship compared the framework of the Public Sector Disclosure Protection Act (PSDPA) to that of the Canadian Human Rights Act (CHRA) and referred to CHRA case law in her judgment, noting that “…the public interest plays a role in each process…”
The public interest is clearly at stake here. The Courts Administration Service serves the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada and the Tax Court of Canada. Any report of wrongdoing in this Service is a very serious matter as it could speak to the functioning of our judiciary at the highest levels.
Members of Canadians for Accountability believe that how Mr. El‑Helou was treated is typical. We see a pattern of punishing and trampling the rights of public servants for doing the right thing or for exercising legitimate recourse open to them when they become aware of wrongdoing.
The first Integrity Commissioner, Christiane Ouimet, was appointed by the government of Prime Minister Stephen Harper in 2007 and retired in October 2010 with a severance of approximately $544,000 and a “Departure Agreement” wherein she promised “to keep all information acquired by her or disclosed to her regarding the business of the Public Sector Integrity Commissioner strictly confidential”.
This was after a scathing report by the Auditor General of Canada, Sheila Fraser, signalled serious mismanagement issues, including the fact that all 228 complaints to the Office since its creation had been rejected. Mario Dion, our current Integrity Commissioner, was appointed by the government of Prime Minister Stephen Harper in 2010.
This Office should be about trust. Employees are not going to come forward readily unless they trust the system to work. As this Federal Court decision clearly demonstrates, the current system does not appear to be working.
Allan Cutler is President of Canadians for Accountability; Martin McGreal is a Director of Canadians for Accountability. Canadians for Accountability is a not-for-profit group which aims to promote a culture of truth, transparency and integrity in Canada’s public and private sector institutions and Canadian society in general.
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