Hon. Pierre J. Dalphond: Honourable senators, it is my honour today to begin debate at second reading of Bill C-290, An Act to amend the Public Servants Disclosure Protection Act and to make a consequential amendment to the Conflict of Interest Act. With such a long title, I assure you that I will not take 45 minutes.

In short, the bill proposes to amend the whistle-blower legislation.

Unanimously adopted at the other place on January 31, 2024, including with votes by the Prime Minister and the President of the Treasury Board, this bill seeks to improve, even modernize the current legislation, which hasn’t been changed in 18 years, in order to provide more protection to public service whistle-blowers, thereby encouraging more public servants to act when necessary. I want to thank the member Jean-Denis Garon — who is here in the gallery — the sponsor of this bill who ushered it through the House of Commons with great success. I also thank him for thinking of me for sponsoring it in the Senate.

In a democracy, functions of a governmental nature are carried out by various independent organizations, including the government, the courts and the public service. Our public service is professional, competent and dedicated. According to a 2017 British report, Canada has the most effective public service of the 31 countries studied. I’ll let you draw your own conclusions. If Canada’s public service is more effective than that of those 31 countries, imagine the others. Still, we are proud of our public service.

Every public servant must be committed to public service and sound management of the public service. That includes a duty to blow the whistle on reprehensible acts, not to turn a blind eye and keep quiet.

People may have reservations about fulfilling that duty. Whistle-blowers may be subjected to threats, blackmail, demotion, sidelining, accusations of disloyalty or financial or psychological consequences.

Cognizant of those risks, in 2005, Parliament passed legislation to protect whistle-blowers in the public service, thereby encouraging people to disclose acts that are contrary to the mission of the public service, which is to serve Canadians well.

In my remarks, I will review the history of the current act and discuss the Office of the Public Service Integrity Commissioner, which was created by that act. I will then address criticisms and flaws in the existing system and conclude with the proposed changes in Bill C-290, which was passed unanimously in the House of Commons.

Let’s start with the history.

The Public Servants Disclosure Protection Act is a product of the sponsorship scandal.

Shortly after Quebec’s last referendum on sovereignty in 1996, voted down by a tiny margin of barely 2%, the federal government launched a program to promote federalism in Quebec by sponsoring cultural and sports events. With an annual budget of $40 million, the program essentially involved issuing contracts to advertising agencies.

Between 1999 and 2002, reporters Daniel Leblanc and Campbell Clark, working for The Globe and Mail at the time, and I give them due credit, published dozens of articles exposing serious anomalies, such as payments for services not rendered, double billing or unacceptable practices, like buying expensive box seat tickets to the Montreal Grand Prix. Certainly, ticket purchases like this could be considered a worthwhile economic benefit, but it’s certainly not the government’s job to fund purchases of box seat tickets. All this was sometimes topped off with commissions paid to influential intermediaries within the public service or the Liberal Party, which was in power at the time.

The inquiry, chaired by my former colleague the late Justice John Gomery, shed light on certain unacceptable practices within the public service, which a lot of people knew about, but no one spoke up about.

Then there was Bill C-11, An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, which was introduced on October 8, 2004.

That bill was enacted in November 2005, but its provisions didn’t come into force until April 2007, or after the election of the government led by Prime Minister Harper.

That new government quickly adopted the Federal Accountability Act in December 2006, legislation that introduced various transparency and whistle-blower protection measures.

That is the background for the current legislation.

I will now move to my second point. The Public Servants Disclosure Protection Act establishes the Office of the Public Sector Integrity Commissioner as an independent federal agency reporting directly to Parliament. This office has jurisdiction over most federal public or publicly owned organizations, including the RCMP and Crown corporations.

Its mandate is to investigate wrongdoings in the federal public sector and to protect whistle-blowers and those involved in investigations from reprisals. Investigated cases are reported to Parliament through an annual report and special reports that include recommendations for corrective measures.

Complaints of reprisals, if deemed admissible, are referred to the Public Servants Disclosure Protection Tribunal, composed essentially of a few Federal Court judges.

The Office of the Public Sector Integrity Commissioner is currently a small entity with some 30 full-time equivalent employees, including 7 analysts, 8 investigators and 5 lawyers. This small but mobile team faces a constant increase in submissions. That’s a good sign because the culture is probably changing. Over the last two years, we’ve seen an exponential increase in complaints; the number has multiplied by three times. Unfortunately, the budget has remained steady, and the office is becoming unable to process the new complaints or, at least, to meet the requirements to deal with them within certain time frames.

Just last month, in August 2024, the Office of the Public Sector Integrity Commissioner received 23 disclosures of wrongdoing. As a result, at the end of August, the office was analyzing 140 files for disclosure eligibility, because the office receives the complaints, and then they check if the complaints meet the requirements of the law in terms of admissibility or eligibility. If they do, then investigators are appointed to conduct inquiries or investigations.

Please compare this number with the previous years. For example, in August 2023, the office was analyzing 61 files, and, in August 2022, it was 38 files. In other words, the number of disclosures has been constantly increasing, and now it has been multiplied by three over two years.

The budget of the office remains unchanged, as we found out this morning at the National Finance Committee. If a disclosure is found admissible, then an investigation is launched. There have been 48 investigations in progress since January of this year. Over the same period last year, there were 25.

In addition to analyzing and investigating disclosures of wrongdoing, the Office of the Public Sector Integrity Commissioner must respond to general inquiries, such as providing the best possible guidance to persons considering making a disclosure. This work receives priority.

The increased workload has not prompted an increased processing capacity in the office. In fact, for several years now, the budget approved by Parliament has been stagnant. Bill C-69, which was adopted in June, provides a budget of $6 million for the fiscal year 2024-25 compared with $5.8 million for the previous fiscal year. That barely covers inflation.

I, therefore, take this opportunity, as I did this morning at the National Finance Committee, to invite the Treasury Board to review the financial framework of the Office of the Public Sector Integrity Commissioner and make proper adjustments through the supplementary estimates that will be coming up soon.

If files are not processed diligently, confidence in the system will decline, and that will translate into fewer complaints. Once a file is closed, the complainant and the relevant department are informed.

In terms of statistics, the other point is the number of cases of wrongdoing tabled in Parliament. Since taking up its duties, the Office of the Public Sector Integrity Commissioner has only identified 21 cases of wrongdoing or cases requiring corrective action.

Another important role of the office is to assist whistle-blowers who are subsequently exposed to reprisal measures.

Only nine cases were referred to the Public Servants Disclosure Protection Tribunal, whose role is to decide whether reprisals occurred. Of these nine cases, none had a finding of reprisal by the tribunal.

To sum up, a growing number of civil servants are calling upon the services of the commissioner for guidance, and filing complaints that need to be processed and reviewed for eligibility and then, if found eligible, have an investigator assigned. So far, the resources seem quite inadequate.

The criticisms made in the past few years by various people or studies, including a parliamentary committee, bring me to my third point.

Whistle-blowers who used the current process have reported an absence of protection or, at least, inadequate protection from internal smear campaigns, threats at their workplace or at their home, internal administrative procedures in order to mentally, physically and financially punish them, pushing some to contemplate suicide. I have met not only people from the commissioner’s office, but also whistle-blowers who went through some highly unfortunate experiences.

All of this leads to the perception that the protections are inadequate and result in a loss of confidence among potential whistle-blowers. These criticisms by whistle-blowers have been corroborated by various studies.

In 2017, the House of Commons Standing Committee on Government Operations and Estimates reviewed the Public Servants Disclosure Protection Act and heard from numerous witnesses. The report traced the successes and challenges of the act, comparing them with other international legislation, as well as identifying six major challenges and providing 15 recommendations to improve our legal framework.

Among the recommendations made by the parliamentary committee, I noted that some suggest amending the act, including in the following ways, and the bill currently before us implements those recommendations in part or in full. These suggestions include clarifying and broadening the current definition of the term “wrongdoing,” broadening the definition of the term “supervisor,” repealing the requirement regarding a whistle-blower’s good faith in order to determine whether his or her complaint is admissible, expanding the Auditor General’s mandate to deal with complaints against the Office of the Public Sector Integrity Commissioner in cases of misconduct by the institution responsible for investigating misconduct, ensuring that the protection provided by the act extends to any person who has helped a whistle-blower as well as to any witness, extending the deadline for filing a reprisal complaint to 12 months, enabling victims of reprisals to directly address the Public Servants Disclosure Protection Tribunal, reversing the burden of proof by presuming the existence of reprisal in certain circumstances, which would require the employer to demonstrate that it has not taken reprisals, and finally, reviewing the act every five years.

The consensus report recommended, among other things, all the issues that I just mentioned, such as broadening definitions, strengthening whistle-blower protection, reversing the burden of proof, providing legal advice to whistle-blowers, imposing mandatory reporting and giving the Office of the Public Sector Integrity Commissioner responsibility for the training, education and supervision of the internal disclosure mechanism. Unfortunately, the government did not take action.

In 2021, a joint study of the Government Accountability Project and the International Bar Association examined some 50 whistle-blower protection laws and identified 20 best practices worldwide. Canada ranked last. In fact, of the 20 best practices in transparency and scrutiny, Canadian legislation features only one. Compare that to the European Union directive that meets 16 of these criteria, the Irish law that meets 15, the French law that meets 7, the U.K.’s, Belgium’s and Italy’s laws that meet 4. Canada is really meeting only one.

I will now move to the content of the bill, my fourth and last part.

The bill before us responds to several recommendations in the 2017 House of Commons committee report and proposes to update the law in light of new realities.

I commend MP Jean-Denis Garon, who did the work that the government was reluctant to undertake, despite the unanimous report of a House of Commons committee. It took an opposition MP in a minority Parliament to see these changes through. Furthermore, it will require our review and our vote at third reading for this bill to go to Rideau Hall and become law. I invite you to do just that at the end of my speech.

As I mentioned, Bill C-290 proposes to address the inadequacies of the current law by broadening definitions. The bill also aims to remove barriers that currently discourage whistle-blowers from coming forward, such as fears of retaliation and the dismissal of complaints based on the personal motives of the complainant because of this theoretical good-faith complaint, which is a subjective concept.

The bill would create a mechanism to allow public servants to report wrongdoing while remaining anonymous. The whistle-blower would then be better protected from reprisals, such as being fired or demoted. Even private companies that receive government contracts could be covered and protected from the non-renewal of their contract because they have disclosed wrongdoing.

Let me describe these proposals in greater detail.

The definition of “wrongdoing” would be expanded in two ways. The first would be by removing the word “gross” in the expression “gross mismanagement.” That will lower the threshold and remove a study they must do at the eligibility step of the process where they determine there is mismanagement — but is it bad enough to be qualified as gross mismanagement?

Second, the bill will include new forms of wrongdoing, such as abuse of authority and political and foreign interference.

Bill C-290 will also expand the definition of a supervisor to whom the whistle-blower should report so that public servants can make protected disclosure to any superior within their organization. This would allow public servants to go to any trusted superior to make their disclosure, up to the deputy minister. Public servants will gain confidence in raising concerns if they know they can go to someone they trust outside of their immediate superior.

The bill would also define what an act of reprisal is, and here I give you a list of acts of reprisal: a disciplinary measure; a demotion; the termination of employment; any measure that adversely affects the employment or the working conditions including, but not limited to, mandatory assignment or deployment of the public servant, any form of reprimand, any form of discrimination, the infliction of emotional distress, any act or omission that causes any psychological injury to the public servant; and any threat to take any of these measures.

Bill C-290 will also extend the period during which a reprisal complaint may be filed from 60 days, which is in the current law, to one year. This extension of the time frame to file a complaint in response to reprisal measures will allow the victims to fully assess their situation, to consult and to file a complaint.

This bill would significantly increase financial penalties for reprisal measures. Some of these penalties will increase from $2,000 to $10,000, from $5,000 to $100,000. The bill would have potentially serious consequences in the event of a breach. These amendments will serve as important deterrents to potential bad actors who are tempted to silence whistle-blowers or punish them for disclosure.

The bill will allow for a new remedy for a whistle-blower if a reprisal action was taken so they could be compensated for the reprisal action or ensuing consequences. Additionally, by giving superiors a duty to protect and provide support to public servants making a disclosure, whistle-blowers could be more confident when coming forward than they are now.

Furthermore, if a person files a complaint about reprisal measures and if, after an inquiry, the commissioner is of the opinion that the application to the tribunal is not warranted, the law will provide that this complainant will have the right to apply directly to the tribunal. The floodgate controlled by the commissioners would be removed in such a case. The tribunal will then have to decide if the complaint is valid, and if it is found to be valid it will have to decide the appropriate remedy.

The bill would also expand the mandate of the Auditor General of Canada to include receiving disclosures of wrongdoing and reprisals involving the Office of the Public Sector Integrity Commissioner. It’s another one of the proposals that I referred to earlier.

Finally, the bill would introduce a parliamentary review every five years to provide an opportunity to suggest ways to improve and adjust to an ever-evolving context.

In conclusion, this bill proposes numerous improvements, but it’s important to keep in mind what we’ve heard from numerous experts, which is that even with the best intentions in the world and the finest bill possible, which this bill is not, it all comes down to culture. If we want people to follow the rules, the rules have to be comprehensible and appropriate.

However, it is just as critical to develop organizational cultures that promote disclosure of wrongdoing. Organizations must adopt best practices designed to change the existing culture around disclosure: fear of reprisal.

Judging from the exponentially higher number of complaints, I think we’re making progress. Nobody should jeopardize their career, much less their health, by disclosing illegal acts or behaviours.

Some members of this chamber are former senior public servants, and they speak to the excellence of the Canadian public service.

Whether in Parliament or in our society, we must never take our first-class public service for granted. It is the envy of the world. That means treating legitimate whistle-blowers with dignity and justice.

This bill would not only revolutionize existing legislation, but also improve it and enable us to meet several of the 20 internationally recognized criteria.

I think it’s a step in the right direction, and so I would invite anyone who has an interest in the subject to rise to speak in the coming weeks. I hope that senators will support the bill and that it will be quickly sent to committee for review and study and that it will then come back to the Senate so that we can finally send it to Rideau Hall. That way we can finally do what hasn’t been done since 2017, and that is follow up on important recommendations.

Than you for listening. Meegwetch.

Hon. Julie Miville-Dechêne: Would you take a question, Senator Dalphond?

Senator Dalphond: Of course.

Hon. Julie Miville-Dechêne: I tend to agree with this bill in that whistle-blowers are very important for our democracy. I’m wondering how this bill strikes the necessary balance. You said that the burden of proof has been reduced and that the term “gross negligence” has been replaced with “negligence” or something to that effect. Those may not be the exact words. You said that there has already been an increase in complaints. By reducing the burden of proof, isn’t there a risk of being inundated with complaints, some of which may be frivolous? We know that sometimes complaints are filed for revenge and all sorts of other reasons. How can we separate all of that?

I don’t imagine there is a simple answer, but I’m sure that you have thought about the balance that we need to strike.

Senator Dalphond: That’s an excellent question. I asked the same thing this morning of the commissioner when she appeared before the National Finance Committee. I also asked whether she was concerned that passing this bill would provoke a flood of complaints. She replied that she already needs more funding, and that if the bill passes, even more money would be needed, because she does anticipate more complaints.

Does she anticipate a flood of complaints? No. She has expressed her support for the bill and hopes it will pass. However, she will have to be given the resources needed to do her job. Of course, the concept of a public servant who discloses in good faith implies that if the whistle-blowing is done out of revenge, the complaint won’t be accepted. Nevertheless, even if it’s out of revenge, the whistle-blower could still disclose a wrongdoing that goes against the public interest and deserves to be denounced. Casting doubt on his or her motives may not be the right approach. The agreement should be reviewed and investigated, and if it turns out that the facts reported are reprehensible under the law, they should be investigated, regardless of the motivation that led this public servant to turn a blind eye at first, only to eventually do the right thing. So much the better if he or she discloses practices that must be stopped.

The legislation contains provisions that allow the commissioner not to address the complaints, but refer them to other organizations that may be better equipped to deal with them. For example, a unionized public servant might report that a supervisor is psychologically harassing him because he was a whistle-blower, no one took action and now he has to deal with the situation. Perhaps in some cases he might be asked to file a grievance; his union could deal with it and everything could be handled more quickly because the apparatus is equipped to address this type of thing. Maybe other cases will be presented by the Human Rights Commission. The commission has the capacity to refer the files, even to the police in the most serious cases. After filtering the information, the commission would transfer the case to the police, as in the case of this communications director who had a beautiful ranch, a lot of horses and a lot of beautiful properties and who seemed to be getting rewarded by the people getting contracts from him.

Hon. Raymonde Saint-Germain: Senator Dalphond, this bill deals with an issue that I’m deeply interested in, and I’d like to underscore that the Quebec ombud now has vital experience and expertise as the official National Assembly institution responsible for managing Quebec’s whistle-blower legislation. The balance mentioned by our colleague Senator Miville-Dechêne is extremely important. For reasons that are sometimes extremely skewed and biased, complaints are sometimes made without any actual basis.

My question primarily concerns the Quebec experience. Have the consultations held so far taken the Quebec legislation into account and the expertise gained over the past two years? Is the Quebec ombud going to be included among the committee’s witnesses?

Senator Dalphond: The basis for this bill is essentially the 2017 House of Commons committee report. Nearly seven years have passed since 2017. I think your suggestion is a very good idea. If the bill goes to committee, that will no doubt be one of the witnesses I’ll suggest that the steering committee invite. We often forget that Quebec has done a lot of interesting things, but because they operate in another language, they’re not on the radar. It’s a good suggestion, and I’d like to suggest that we invite the person currently in that position. If he’s not available, we’ll ask you to appear.