Whistleblower protection: who really pulls the strings?
By DAVID HUTTON
When examining the sorry track record of the Public Sector Integrity Commissioner’s Office, it’s easy to overlook those primarily responsible: it was Privy Council Office (PCO) and the Treasury Board Secretariat (TBS), working mostly behind the scenes, who—intentionally or not—set up PSIC to fail. Here’s how it was done.
The Role of Treasury Board
Treasury Board drafted faulty legislation
Given the wide range of serious shortcomings in the PSDPA, it’s difficult to believe that the drafters intended it to work—unless they were completely oblivious of best practices and other jurisdictions’ experience.
The most glaring example of this is the absence of a ‘reverse onus’ provision. The PSDPA puts the onus on whistleblowers to prove that the actions taken against them were reprisals—an almost impossible task. Effective whistleblowing laws shift the burden of proof to the employer, to show that adverse actions were not intended as reprisals. This has been well understood for literally decades—since the disastrous experience of the Merit System Protection Board (in the U.S.) in the early 1980s. Without a reverse onus, of the first 2,000 whistleblowers who submitted claims of reprisal, only four prevailed. Is it possible that Treasury Board didn’t know this?
Another of the serious shortcomings of the law is the inadequate definition of wrongdoing. PSIC can only investigate alleged wrongdoing if the actions described fit the PSDPA definition of wrongdoing. However, the definition set out in the act is problematic because of what it omits.
For example, Treasury Board policies (for example, the procurement rules that were at the heart of the Sponsorship Scandal) are not specifically included, although these are among the principal instruments used for management and control in the public service. Instead, the commissioner will have to decide whether a policy violation falls under one of the broader definitions of wrongdoing, such as ‘gross mismanagement’—and this interpretation will be vigorously challenged by government lawyers defending the alleged wrongdoers.
These are just two of the numerous shortcomings of the law (about 40 by our count) which create traps and obstacles for whistleblowers. These make it child’s play for PSIC to find reasons to send whistleblowers away and to take no action—which is what they have done in the overwhelming majority of cases.
Our detailed analysis of the PSDPA can be seen at http://cfe.ryerson.ca/whistleblowing
Treasury Board allowed departments to draft codes of conduct that criminalized whistleblowing
The PSDPA called for a new overarching code of conduct to be created by TBS, and for departments then to develop their own similar codes of conduct. But this is where things began to go wrong: media reports revealed that whistleblowing was being criminalized by the new codes of conduct. For example, the House of Commons (which is not subject to the PSDPA) tried to impose a lifetime ban on revealing work information, with draconian penalties. Other departments criticized by the press for similar efforts included CIDA, Library and Archives, and the RCMP.
Departmental codes of conduct are subject to Treasury Board approval, so either TBS didn’t do its job, or it considered it acceptable to gag and criminalize whistleblowers—in documents that were direct extensions of the whistleblowing law.
Treasury Board failed to monitor the performance of departmental whistleblowing systems
Treasury Board is responsible for oversight of the implementation of this legislation, but it has, in our view, done an exceedingly poor job.
For example, TBS is required to create a report each year which provides basic statistics on levels of activity within all departments. Even a cursory look at these reports suggested there were serious problems.
Canada Post reported no activity of any kind for three years—not even a single enquiry from a workforce of more than 60,000 employees. My analysis of the TBS numbers in 2011 showed that the six largest departments, employing between them about half of the entire federal workforce, had not yet uncovered a single case of wrongdoing in three years. Why did TBS allow such continued disregard?
In part, due to TBS’s inattention, the departmental whistleblowing systems are generally not trusted and are rarely used. Several witnesses testified before committee last week that these systems are completely ineffective and a massive waste of resources.
Treasury Board blocked legally required five-year review
During the first five years of operation of PSIC, the concerns of civil society whistleblowing advocates kept multiplying. We were puzzled and deeply concerned by the complete absence of results under Christiane Ouimet—until this was explained by the 2010 auditor general’s report.
When Mario Dion took over it soon became clear that little had changed, so we began clamouring for the law to be rewritten, and the legally required five-year review of the law seemed a timely and suitable vehicle to accomplish this. It was not to be.
We campaigned for a thorough and independent review because we feared that Treasury Board might orchestrate a superficial process with pre-determined findings. But Treasury Board went one better: it simply declined to launch the review.
This was blocked for another five years, until a few weeks ago, when TBS President Scott Brison suddenly handed the task to a parliamentary committee—without any explanation of this extraordinary delay or the recent change of heart.
The Role of Privy Council Office
While Treasury Board determines how the law is written, PCO determines who gets to run the show.
PCO is in a position of enormous power because of its control of thousands of appointments: it effectively determines who becomes integrity commissioner—and what sort of position (if any) this individual might receive on completion of his or her term.
The Appointment of Christiane Ouimet
PCO’s management of the appointments process for PSIC seemed problematic right from the start.
Before PSIC came into being, Dr. Keyserlingk, a respected academic, served as the public sector integrity officer—a watchdog similar to PSIC, but with much less authority and independence. Keyserlingk was effectively one of the parents of PSIC, by virtue of his campaign for the creation of a more effective agency.
In passing the baton to PSIC, Keyserlingk believed PCO agreed with him that it was essential for the new integrity commissioner to be a respected, experienced senior person from outside the bureaucracy, so he approached two people who he thought excellent candidates and convinced them to apply. Neither even received an acknowledgment.
When PCO was later grilled regarding its disastrous selection of Ouimet—who resigned in the face of a scathing report on her actions by the auditor general—it emerged that there was no use of a recruitment agency to find suitable applicants, and no formal selection committee. A PCO senior executive, Patricia Hassard, rejected all 12 of the formal applications saying that none met the criteria, then looked around for others. As Hassard testified, they relied upon “…our own sources—in this case, our own database of individuals, our own knowledge of the senior leadership.”
In other words they looked within the bureaucracy for people they knew.
It appears that there was no real consideration of appointing an outsider through this secretive and informal process and the choice of Ouimet proved to be a disaster for whistleblowers.
The appointment of Mario Dion
When Ouimet resigned, Mario Dion, a retired senior bureaucrat, offered himself for the job and was soon appointed interim commissioner, without any consultation with the relevant parliamentary committees.
It may have helped that Dion was friendly with Wayne Wouters, then clerk of the Privy Council. One of Dion’s first acts was to give Wouters a “heads up … to ensure that Wayne is not blind-sided” regarding a case that Wouters might be asked about. This was a clear violation of ethics and completely inconsistent with Dion’s new watchdog role.
Initially, Dion was appointed as interim commissioner only, and according to three members of his advisory committee, he stated that for him even to apply for the permanent position would put him in a position of conflict: of trying to please the prime minister and cabinet so they would appoint him as full-time commissioner. But after a year he was appointed commissioner. The selection process was more formal this time—but again applicants from outside the bureaucracy were screened out.
The appointment of Joe Friday
Joe Friday was Ouimet’s right hand man—testified with her when called to committee—and was promoted by Dion to deputy commissioner. Was there a genuine examination of other possible candidates? Allan Cutler, founder of Canadians for Accountability, who applied for the post, testified that he was told by PCO insiders—before the selection process was carried out—that Friday was the chosen one.
If this appointment was intended to regain the trust of public servants, Friday’s long association with PSIC’s troubles (as exposed by the auditor general) and his mentoring by both Ouimet and Dion would seem to disqualify him. His commitment to protecting senior bureaucrats was on display last week, when in a rare finding of wrongdoing until recently, just one in three years, he told Parliament about the vicious, repeated harassment and bullying of staff carried out by a senior executive, but failed to name the individual in his report. Although Friday says he informed the senior executive’s new department of his findings and it has determined discipline is warranted, failing to name him in the report could expose others to similar abuse and ultimately serves to protect the senior bureaucrat.
Thus over the space of a decade PCO has delivered a succession of hand-picked career bureaucrats, all cut from the same cloth, all apparently hostile to whistleblowers and all indoctrinated and motivated throughout their careers to protect the senior bureaucracy and its political masters.
What were PCO and TBS trying to accomplish? Did Stephen Harper, once he became Prime Minister, really want whistleblowers to be protected, as he promised during his successful election campaign?
If this system was indeed designed as someone said “to protect deputy ministers from whistleblowers” then it has been a resounding success. However, from the perspective of Canadian citizens and honest public servants it has been a disaster.
This government needs to show that it values and respects the integrity of the public service by carrying out root-and-branch changes—to the law and to staffing—that will finally turn this failed agency into a safe haven for honest public servants and a scourge for wrongdoers. After more than a decade of stonewalling and inaction by both parties, surely it’s time for real change. Canadians deserve better.
David Hutton is a senior fellow at the Centre For Free Expression at Ryerson University and former executive director of FAIR.
-------------------------------------------------------------------------------
U.K. vs. Canadian whistleblowing systems
In both the U.K. and Canada the only body able to award a remedy to whistleblowers who have suffered reprisals is a tribunal. In the UK anyone can apply to the tribunal, while in Canada the Integrity Commissioner acts as the gatekeeper.
The following table compares how effective these two systems have been during their first decade or so of operation.
U.K. (2000-2012) Canada (2016-2017)
Population covered 30 million 0.4 million
Applications to Tribunal 15,000 7
Successes (remedy awarded) 600 zero
Sources: Public Servants Disclosure Protection Tribunal (Canada) and the Department of Trade and Industry (U.K.)