On November 9, 2006 the Senate passed sixteen amendments to the PSDPA (as part of a package of 158 amendments to the Federal Accountability Act). On November 20, the Government rejected fifteen on them. The sole amendment to be accepted was not substantive.
In our view the Senate did an excellent job of identifying the most serious flaws in the whistleblower legislation, and drafted amendments that would have greatly improved the Act. It is regrettable that all of the substantive amendments were rejected. The reasons given by the Government for rejecting these amendments are implausible, often having little to do with the amendments in question and in many cases accompanied by absurd arguments.
The following is FAIR's analysis of the Senate’s amendments. First we explain the significance of each one, then for completeness we provide the exact text of the government’s official response.
The Senate’s Amendments (see full text here)
The issue here is under what circumstances a disclosure will be ‘protected’ i.e. when can whistleblower can seek the help of the Public Service Integrity Commissioner. The Bill defines this quite narrowly, e.g. to circumstances when disclosure is ‘lawfully required’.
The Senate amendment broadens this part of the definition, so that a disclosure is protected that is ‘lawfully permitted or required’.
The issue here is what constitutes reprisal against the whistleblower. The Bill currently defines this quite narrowly, e.g. in terms of traditional disciplinary actions such as demotion. However, the reality is that such overt measures are often avoided by management in favour of more subtle tactics, such as ridiculing and humiliating the employee in front of others, isolating them from peers, spreading malicious rumors about them, giving them pointless work (or no work at all). Such tactics, though less blatant, can be equally devastating to the individual and to their mental health, especially when sustained for months or years with no remedy in sight.
The Senate amendment broadens the definition of reprisal to include “any other measure that may adversely affect, directly or indirectly, the public servant.”
The issue here is what parts of the public sector should be covered. The Bill currently excludes the Canadian Forces and the two security agencies: CSIS (Canadian Security Intelligence Service) and CSE (Communications Security Establishment).
The Senate amendment extends coverage of the Bill to the security agencies. This is a wise step given the history of abuse of secrecy provisions by such agencies. Employees trying to correct flaws corrected in the anti-terrorism systems can have their security clearance arbitrarily removed, thus rendering them unemployable for life in their chosen profession.
This amendment removes a paragraph that is made redundant by Amendment 128
This is a very important amendment. The issue is how a whistleblower can prove that he or she has been subject to reprisals. Normally the playing field is tilted steeply in favour of the employer, who typically has all the information about why actions have been taken against an employee, while the employee typically has virtually no information. In other jurisdictions, even the most brutally mistreated whistleblowers could rarely prove in court that this treatment was retaliation – until the principle of reverse onus was devised. This works as follows: if any action is taken against the whistleblower shortly after this person began to allege wrongdoing, then this is assumed to be a reprisal, and the onus is on the employer to prove otherwise.
This Senate amendment is a reverse onus provision, which helps level the playing field, so that a whistleblower who truly has been victimized stands a reasonable chance of proving this in court. Without this provision, even the most badly-abused whistleblower may never get any kind of remedy from the courts.
The issue is how quickly a whistleblower should report that he or she has been retaliated against. The Bill prescribes just 60 days after making an allegation of wrongdoing, after which the whistleblower loses the right to complain about reprisals. This time limit is totally unrealistic. Whistleblowers typically go ‘up the line’ within their organization as a first step, trusting that the more senior people are honest and will act on the information provided. And the initial retaliation is usually passive, such as neglecting to give raises or promotion. It may be months or years before the individual realizes that they are being systematically denied advancement, rather than just having some difficulties with their immediate manager.
The Senate amendment increases the period of notice from 60 days to one year.
The issue here is: should the legislation limit what damages can be awarded to a whistleblower for pain and suffering. The Bill currently imposes a cap of $10,000. This is a strange and seemingly arbitrary limit, especially since some whistleblowers are persecuted so viciously and for so long that they suffer from serious, life-changing psychological inuries such as PTSD.
The Senate amendment removes this arbitrary cap, allowing the court to award what seems appropriate, given the facts of the case.
This amendment alters one of the powers that the Commissioner may not delegate to one of his/her staff:
“the power in section 33 to commence another investigation”
“the power in section 33 to commence an investigation”
Just one word has changed, which has no real significance in terms of what the Bill accomplishes. This is the only Senate amendment accepted by the Government.
A public service whistleblower is typically confronted by a whole team of government lawyers, who defend the alleged wrongdoers at taxpayers' expense and who seem to have unlimited time to spend on the case. Most whistleblowers simply give up at this stage, realizing that even if were to pour their life savings into legal fees, they cannot prevail. The Bill currently allows the Commissioner to provide legal assistance to the whistleblower – up to a limit of $1,500 (or $3,000 in ‘exceptional circumstances’).
The Senate amendment to raises this limit to $25,000 (or more at the discretion of the Commissioner in exceptional circumstances).
Amendment 137 and 138
The issue here is whether the Commissioner can seek information from the private sector, when investigating an alleged wrongdoing within the public sector. The Bill not only prohibits the Commissioner from seeking any information from the private sector, but requires the Commissioner abandon any line of inquiry that would involve obtaining information from the private sector. This is a seriously problematic provision because the public sector makes extensive use of contractors. Under this Bill, the Commissioner would have been unable to properly investigate the Sponsorship Scandal.
These two Senate amendments give the Commissioner the authority 1) to seek information from outside the public sector, and 2) to continue an investigation when some of the information sought is in the private sector. They do not give the Commissioner the right to investigate wrongdoing where the public sector is not implicated.
The original Liberal legislation (Bill C-11, which the FAA modifies) placed a blanket of secrecy over the Commissioner’s findings for five years, thus delaying any public revelations beyond what the Commissioner might choose to make. However, the Commissioner is only required to report on proven wrongdoing to the department head concerned (typically the Deputy Minister) and then to submit a case report to Parliament. It is left to the Commissioner's discretion to decide how much to disclose about the wrongdoing or who was responsible.
This might seem contrary to the principles of transparency and disclosure, but the Federal Accountability Act goes further: it prohibits forever any disclosure of information gathered during the Commissioner’s investigations. In case there is any doubt about the intent here, there are several sections of the FAA that deal with Access to Information, closing off every possible avenue of disclosure. These provisions have the effect of shielding from exposure those found guilty of wrongdoing.
The Senate introduced five amendments related to Access to Information, which achieve the following:
- removal of the draconian “secret forever” clauses
- giving some measure of protection to whistleblowers (or other witnesses) who wish the remain anonymous
- giving the Commissioner the discretion to disclose what he or she deems to be in the ‘public interest’.
Reasons Given by the Government for Rejecting the Amendments (see full text here)
The following are excerpted from the Order Paper for November 21, 2006: “Motions Respecting Senate Amendments to Bills”.
Amendments 128 and 131 would undermine the objective of stronger protection for public servants who disclose wrongdoing in the public sector by creating confusion as to the types of disclosure that are protected or not under the Public Servants Disclosure Protection Act. The amendments would confuse the clear parameters set in the Act to guide public servants who are considering making a disclosure by incorporating vague common law principles, which could lead to public servants making public disclosures that they think are protected, but turn out not to be;
Amendments 129 and 132 would unbalance the reprisal protection regime proposed in the Public Servants Disclosure Protection Act by expanding the definition of “reprisal” to include “any other measure that may adversely affect, directly or indirectly, the public servant” and providing for a reverse onus, such that any administrative or disciplinary measure taken within a year of a disclosure is deemed to be a reprisal, unless the employer shows otherwise. These amendments would expand the definition of reprisal to include behaviours unlikely to be under the control of the employer and managers will be reluctant to take legitimate disciplinary action for fear of being the subject of a reprisal complaint, which would expose them personally to a disciplinary order by the Tribunal;
Amendment 130 would increase the risk of disclosure of sensitive national security information by subjecting the Communications Security Establishment and the Canadian Security Intelligence Service to the Public Servants Disclosure Protection Act without additional specific disclosure protection measures;
Amendment 133 would extend the time limit to file a reprisal complaint from 60 days to one year. The amendment undermines the discretion of the Public Sector Integrity Commissioner who already has the authority to extend the time limit beyond 60 days if he or she feels it is appropriate;
Amendment 134 would undermine the objective of the Public Servants Disclosure Protection Act to balance appropriate and responsible protection from reprisal for public servants that make a disclosure without creating unintended incentives for vexatious or frivolous complaints. The amendment would remove the $10,000 limit on awards for pain and suffering, leaving the amount to the discretion of the Public Servants Disclosure Protection Tribunal;
Amendment 136 would undermine the principles of the Public Servants Disclosure Protection Act by increasing the maximum amount for legal advice from $1,500 to $25,000, or to an unlimited amount at the discretion of the Public Sector Integrity Commissioner. The legal assistance is intended to provide any person who could become involved in a process under the Act with legal advice as to their choices, rights and responsibilities. In relation to reprisal complaints, the Commissioner investigates and determines whether a reprisal complaint should be brought before the Public Servants Disclosure Protection Tribunal and is a party before the Tribunal so that he or she can present the findings of the investigation. The amendment would make all processes under the Act far more legalistic and litigious;
Amendments 137 and 138 would give the Public Sector Integrity Commissioner the power to compel evidence and pursue information held outside the public sector. This amendment is unacceptable as it would increase the risk of challenges to the Commissioner’s authority and jurisdiction without providing significant assistance to the discharge of his or her mandate under the Act, which is to investigate wrongdoing and complaints of reprisal related to the public sector;
Amendments 139 to 143 would increase the risk of harm to the reputations of those that are falsely accused of wrongdoing as the narrowing of exemptions provided to the Public Sector Integrity Commissioner and other heads of institutions under the Access to Information Act, Privacy Act and Personal Information Protection and Electronic Documents Act would increase the risk of their names being released to the public;