Opening Remarks - Joe Friday - Legislative Review Second Appearance

Standing Committe on Government Operations and Estimates (OGGO)

Thursday, March 23, 2017, 8:45 a.m.

Thank you, Mr. Chair, for inviting me to appear once more to discuss the review of the PSDPA.  It is a pleasure for me to be here this morning to continue the discussion we began last month on this important legislative initiative.

I was very pleased to have tabled at the time of my February 14 appearance, 16 concrete proposals for positive and progressive change to enhance Canada’s federal public sector whistleblowing regime.

Since my last appearance before this Committee, Mr. Chair, my Office has tabled two case reports before Parliament on founded cases of wrongdoing. And we have published a research and discussion paper on the fear of reprisal, authored by Dr. Craig Dowden, copies of which I understand Committee members have received this week.  This is the first such paper produced by my Office, and it is an important contribution to the ongoing discussion of whistleblowing in Canada.  I spoke about the need for cultural change when I was here last month, and I note that several witnesses have since raised this same important issue. This research paper addresses this, including making recommendations that will support the ongoing process of such cultural change.

One of my goals as Commissioner, as I told you when I was last here, is to normalize the act of whistleblowing, and I believe our activities in the last month represent significant progress toward achieving that goal.

I have followed this Committee’s deliberations, since my appearance last month, and I am heartened by the level of focused interest on the parts of so many witnesses to make real and significant progress in advancing the whistleblowing regime.  While I do not agree with the view that the regime is a failure and the law must be redrafted from the start, I can say that I support what I detect to be a collective will to support effective whistleblowing and meaningful reprisal protection.

I note the depth and focus of discussion about the process for dealing with reprisals, and that fact that it is daunting, and even discouraging, when someone has to first wait for an investigation to be completed by my Office, only then to have to go through a formal Tribunal hearing – a process not unlike a trial – to get a final ruling.

This brings me to a very important point, and one that I did not have the opportunity to fully address when I was here last month, and that is our authority to conciliate and settle reprisal cases.  To date, we have successfully conciliated 9, resulting in settlements that the complainant participated in and willingly agreed to.  In another 5 cases, the Tribunal used mediation to settle the matter. 

Mr. Chair, my background is in alternative dispute resolution.  My first job in my legal career was as a private practice litigator; my last job at the Department of Justice was heading up the alternative dispute resolution program.  I think you can see where my interests and beliefs lie in respect of providing people with access to justice, to meaningful involvement in the resolution of their own disputes and in avoiding, when possible, unnecessary litigation and the high costs associated with it.  Yes, every case that my Office conciliates means one less case for the Tribunal, and one less public decision on a reprisal case, and one less precedent for the law books – but it also means one more reprisal victim is able to get restitution for what they endured, save time and money and emotional turmoil, and get on with their lives.  Mr. Chair, this is not a failure of the reprisal protection regime that I administer under the Act.   And I should also point out that every conciliated complaint is reviewed by my Office and formally signed off on by me, before the file is formally closed, so we retain control over a file to ensure that no one is coerced into a settlement or otherwise making an uninformed or involuntary decision to settle.

I was initially going to end my remarks here this morning. However, following testimony you heard earlier this week, I felt it was important for me to clarify some key points, from my perspective, in the aim of ensuring a clearer understanding of not only of some important issues that the Act already addresses, which in turn will, I hope put some of my proposals for legislative change in clearer context.  I will start by saying that the Act is complex, and it is drafted in a way that makes it, again from my personal experience, difficult law to navigate and understand.  I will touch on three issues that I think are relevant, given the discussions before this Committee to date, and which go to the extent and the sufficiency of protections and redress mechanisms for whistleblowers and other parties involved in our processes.

Firstly, for example, the Act does not prohibit, and indeed it expressly provides access to the Federal Court for any party involved in a disclosure or reprisal to have a decision of my Office reviewed.  Like any other administrative decision making body, my decisions are subject to being judicially reviewed, and under the Federal Courts Act, the powers of the court are considerable.  Furthermore, nothing in the Act precludes a public servant from exercising any other recourse that they may otherwise have in relation to their situation.

Secondly, contractors with the federal government are specifically protected under the Act from having their contract terminated or their payment withheld, because they provided information about a wrongdoing.  In essence, they are protected if they blow the whistle.  And further, the contractor’s actions cannot be taken into account in the awarding of future contracts.  Related to this is the fact that if someone in the private sector provides information about a wrongdoing to my Office, their employer commits a criminal offence if they are reprised against. Contractors and their employees would also have access to the courts for appropriate remedies.

And thirdly, section 51 of the Act provides Chief Executives with the power to temporarily assign other duties, inside or outside the Department they currently work in, to a public servant who is involved in a disclosure or reprisal complaint, with the consent of the whistleblower or the complainant.  

This committee may wish to strengthen these elements and I would be pleased to discuss them with you this morning or in the coming weeks.  But I do want to address what I believe to be a misunderstanding that the Act is silent on these very important matters.

In closing, I would like to say that I remain confidently in support of the 16 proposals for legislative change that I tabled with you on February 14, and I hope that Committee members are able to support them, as this review process draws to a close.  I look forward, Mr. Chair, to our discussions today.