Dr. Paul G. Thomas, “Building a more
Effective Whistleblower System for the
Government of Canada” Submission to
the House of Commons’ Standing
Committee on Government Operations
and Estimates, March 1, 2017
I Introduction
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In the current era when a political culture of suspicion
combines with more transparency in government and
an aggressive media environment, the public tends to
believe that wrongdoing is widespread and that the
only one who pays a price when misdeeds are disclosed
is the courageous whistleblower. This is a false, or at
least highly exaggerated, stereotype of the ethical
norms and behaviours that prevail in the public sector.
The ethical foundations of Canada’s political system and
of its public service are not crumbling. It is time to make
improvements to Canada’s whistleblower system to
take account of changing circumstances and rising
ethical expectations but we need to keep the problems
in perspective.
Encouraging, supporting and protecting public sector
employees who disclose serious wrongdoing has
proven to be difficult in all political systems, even when
whistleblower protection (WB) laws exist to serve these
purposes. Often those laws have been passed in the
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aftermath of a scandal with extravagant claims made
about how they will expose wrongdoing, hold
wrongdoers accountable, protect courageous
whistleblowers against retaliation, lead to improved
procedures, and enhance trust and confidence in
governments.
Constructing a WB regime involves the balancing of a
number of interests: the public interest in exposing and
correcting wrongdoing, the protection of the
whistleblower against reprisal, the interests of the
individuals accused of wrongdoing who may be the
victims of inaccurate or false claims, and the interests of
the organization whose operations are often disrupted,
its morale weakened and its reputation harmed by the
negative publicity of a whistleblowing incident.
The whistleblower system within the Government of
Canada is relatively new. The Public Servant Disclosure
Protection Act (PSDPA) only came into force on April
15, 2007, although there was before that date an
internal administrative policy and process intended to
encourage and protect public servants who disclosed
serious wrongdoing.
Experience around the world indicates that
governments rarely draft flawless legislation and
establish all the appropriate structures and procedures
on their first attempt at establishing an effective
whistleblower system. That is why a mandatory review
after a reasonable period of time is usually included in
such laws. Section 54 of the PSDA states that within five
years of the coming into force of the law the President
of the Treasury Board will cause such a review to take
place. More than five years has passed. Lessons have
been learned and the circumstances and expectations
that prompted the law have changed. Therefore, the
work of this committee is both overdue and important.
2 The Multiple Purposes of Whistleblowing Systems
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The task of reviewing the law and its impacts is
complicated by the fact that the aims of the PSDPA, as
set out in the Preamble, are multiple, both specific and
general, as well as immediate and long term, and even
potentially conflicting. This means that it is difficult to
develop, let alone secure agreement on, the best
indicators of how well Canada’s whistleblower system
is working. Here is a partial list of potential indicators of
success:
- Whether the law encourages organizations to
develop their own well understood, fair and
efficient disclosure procedures;
- The confidence of public servants in the safety
and fairness of the disclosure procedures and
whether wrongdoing will be corrected;
- The volume of disclosures within the “home”
organizations of employees and through the
OPSIC;
- The types of wrongdoing disclosed in terms of
their appropriateness under the act and their
seriousness;
- Whether the problems disclosed are corrected
and preventive measures taken;
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- Whether public servants who engage in good
faith disclosure are protected against reprisal;
- Whether the law and its operation make internal
dissent and disclosure more legitimate and
accepted behaviour in the public service culture;
- How often public servants misperceive
wrongdoing and/or act in bad faith;
- Whether the law and its operation serves a
preventative purpose, reduces the incidence of
wrongdoing and over time contributes to
increased trust and confidence in government.
In summary, assessing the effectiveness of the PSDPA
must definitely go beyond the two most popular
indicators used in criticisms of the law; namely the
number of disclosures of wrongdoing made to the
Public Sector Integrity Commissioner (PISC) and the
number of allegations of reprisals that are upheld.
Gathering evidence for a more comprehensive
assessment of the success of PSDPA would require
multiple types of information gathering. It would also
require a causal model of how a range of factors, both
internal and external to government potentially affects
the operation, outcomes and perceptions of Canada’s
whistleblower system. Even with more comprehensive
information gathering, the evidence would be subject to
varying interpretations.
3 The Disappointing Record of PSDPA
Even with the limited evidence available, most informed
observers would argue that the PSDPA has not fulfilled
its ambitious aims- many would describe it as a failure
in terms of the main aims of encouraging disclosures
and protecting whistleblowers.
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The deficiencies arise from both a flawed statute and
problems related to translating its lofty aims into
effective practice.
4 Flawed Legislation
The PSDPA is a complex piece of legislation that
produces an elaborate system of institutions interacting
with one another and with other actions taking place
throughout government. As a non-lawyer and an
outsider observer, I cannot claim to know the
significance of all parts of the law. However, I believe
that the law needs to be improved and modernized in
the following respects:
• Simplify and clarify the law, particularly with
respect to use of the three channels for disclosure
and the procedures for handling alleged reprisals;
• The largest number of disclosures rely on the
departmental channels so the law (and related
administrative practices) should be made as
straightforward, easy to understand and as safe to
use as possible;
• Many of the disclosures involve matters related to
employment. Amendments to PSDPA should
integrate the legislation more effectively with
employment law for the public service. In
particular amendments should clarify the
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jurisdictional boundaries between the PSIC and the
Public Service Labour relations and Employment
Board, which should be the channel for staffing and
workplace issues;
Remove the disincentive of the “good faith”
requirement for making a protected a disclosure so
that the motivation of the whistleblower is not a
factor, as was done in Norway and in the UK;
Clarify that a disclosure qualify for protection
whether it is true or not provided it is not frivolous
or vexatious;
To provide a greater incentive to disclose, make
whistleblowers eligible for priority redeployment
status within the public service;
The matter of preserving the anonymity of the
whistleblower provokes disagreement. Clarify the
principles and procedures involved. There are
arguments for confidentiality up to a certain stage
in the process but absolute anonymity is not
consistent with principles of natural justice and
fairness for those accused of wrongdoing;
Provide protection for the unintentional disclosure
of false or misleading information provided it is not
frivolous or vexatious;
Allow for the investigation of former public
servants, not just those who are currently
employed within government;
Extend the coverage to contractors and public
partnerships where public money is involved as
was done in Australia;
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• Clarify and expand the meaning of reprisal;
• Provide a longer time period for complaints about
reprisals to recognize that the most common forms
of harm to the careers of whistleblowers are
indirect and longer term;
• Shift the burden of proof to require the employer to
demonstrate that various kinds of actions were not
in fact reprisals;
• Making a claim of reprisal can be expensive so the
act should provide for financial assistance for legal
advice and independent counseling.
For several reasons I do not favour cash compensation
for whistleblowers who present valid claims. (See Paul
G. Thomas, “Paying Too Much for your Whistle,
Optimum, 36,2 June 2006.)
5 Complicated Structures/Procedures and Implementation
Problems
Based upon the structural framework laid out in the
PSDPA, Canada’s disclosure regime involves a
complicated, interconnected set of laws, administrative
rules, institutions, procedures, reporting requirements
and ongoing interactive relationships that make
implementation of the law anything but
straightforward.
Making the PDSPA work as intended requires
understanding, commitment and collaboration by many
different actors, such as individual public servants,
public service unions, departments/agencies and their
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leadership, supervisors and the designated Senior
Officers responsible for receiving disclosures, the
Treasury Board and the Treasury Board Secretariat, the
Integrity Commissioner and his office, the Public
Servants Disclosure Protection Tribunal and the courts.
Each of these entities has a defined purpose under the
PSDPA, but to a front line employee the statutory
framework presents a confusing array of offices
structures and procedures that can be confusing and
intimidating.
Departments, the TBS and PSIC have produced
educational materials in different formats and outreach
activities have taken place, but ensuring such
information reaches 400, 000 employees in a sprawling,
diverse public service located in the Capital Region and
across the country presents huge communications
challenges.
The 2015 report done by Phoenix Strategic Perspectives
for the PSIC concluded from ten focus groups held
across the country that awareness of PSDPA had
increased in recent years. However, awareness of
structures and procedures is not the same as having
deep understanding, confidence and trust in them.
Ideally a whistleblowing system should be simple,
understandable, efficient, expeditious, consistent,
reliable, safe, independent, transparent and fair.
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Achieving all of these attributes is challenging and
requires by necessity the involvement of more than one
body, including an independent body outside of the
administrative framework of government. In the
Australian national government, for example, there are
departmental structures/procedures, as well as defined
roles for the Public Service Commission, the Merit
Protection Board and the Ombudsman.
In the interest of simplicity, some commentators have
called for a “single window” to handle whistleblower
matters but that would inappropriately combine several
conflicting roles in one body.
Simply relying on the courts is also not feasible because
that process would be excessively legalistic, expensive
and time consuming. It is often assumed that courts and
court-like procedures are the only means for ensuring
fairness and justice, but research (like that of Jeffrey
Mashaw on disability claims) indicates that
administrative bodies can develop procedures and
cultures to support and protect individuals within
bureaucratic settings.
If streamlining the structures and procedures of the
PSDPA is not easily accomplished, it should be possible
to achieve a more coordinated approach within
government. Coordination can involve both formal, topdown direction by a central body and/or informal
harmonization of activities by the various organizations
responsible for the implementation of PSDPA. It is
impossible for an outsider to know how much of each
type of coordination is occurring.
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6 Improved Coordination
Since 2008 the top down direction is meant to come
from the office of the Chief of Human Resources Officer
(CHRO) in the TBS which (under a previous title of the
Human Resources Management Agency) was
designated back in 2007 as the policy center for the
development of the PDSPA and as the lead agency
responsible for the development of a Charter of the
Public Service and a new Code of Public Service Values
and Ethics. It appears that the CHRO has relied upon
“tight-loose” control to ensure that departments meet
their obligations under the PSDPA.
CHRO ensures that departments/agencies meet the
legal requirement to establish disclosure / protection
mechanisms within their organizations. Department
heads and agency executives are required to gather and
report to the CHRO statistics on the number of inquiries
and disclosures and those numbers are available on the
TBS website. It is not clear whether compliance with the
requirements of the PSDPA are part of the annual
Management Accountability Framework MAF) reviews.
Such reviews contribute to setting performance pay for
deputy heads. It is also not clear whether CHRO
conducts regular audits or evaluations of the
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effectiveness of the procedures and outcomes at the
departmental/agency level and works with
organizations to improve their fulfillment of the aims of
PSDPA.
In its annual report on PSDPA for 2015-16, CHRO
presented a table on disclosure activity from 20102016. The number of reporting organizations has
dropped over that period from 154 to 134. There were
18 smaller organizations where no senior officer or
internal reporting procedure existed in 2015-16. The
number of inquiries, the number of organizations
reporting disclosures, the number of disclosures, the
number of reported cases of wrongdoing and the
number of corrective actions taken –all remained
relatively stable over the time period.
7 The Preference for Resolving Matters Internally
The numbers of inquiries/complaints from the
departmental/agency level (compared to the volume
handled by the PSIC) indicates the preference of most
employees to stay within their “home” organization.
There is no legal requirement that they first exhaust
internal remedies.
The pattern of reliance upon internal channels probably
reflects several factors. There can be uncertainty about
whether they have observed actual serious wrongdoing
and a lack of confidence may cause them to first seek
clarification internally. They may believe that their
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concerns are best resolved through alternative dispute
resolution mechanisms available within the
department. Based on prevailing norms, internal
resolution is probably preferable to the disruption and
harm caused by the display of so-called “dirty linen” to
an outside body, even to the PSIC. The small number,
but often high profile cases of whistleblowers who have
alleged retaliation has no doubt created in some
locations and among some employees a climate of fear
that external disclosures will cause damage to one’s
career, reputation and even personal life.
8 Creating a Safe Culture
Changing the culture of a large, diverse organization like
the federal public service is a slow, uncertain process
that more resembles gardening than engineering. With
respect to whistleblowing, leaders must plant seeds of
integrity, openness and safety and they must nurture
them to fruition. Creating an interpersonal climate of
trust and cultures of safety to encourage and support
whistleblowing is proving to be difficult.
Research studies elsewhere indicate that factors such as
supervisory support, organizational commitment and
the status of the employee (seniority, managerial or
non-managerial, male/female, minority group
members, etc) can affect employee perceptions of
whether wrongdoing can be safely reported.
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With these findings in mind (and with the assistance of
an expert from the public service), I reviewed the
relevant results from the 2014 Public Service Employee
Survey (PSES). There were no direct questions on what
determines perceptions of the risks of disclosing, but
four questions (Numbers 38,48,49 and 50) offer
relevant findings.
In response to question#50, only 38% of respondents
felt free to initiate a formal recourse procedure
(including a grievance or an appeal) without fear of
reprisal. The climate of trust and safety varied across
departments. Based on a correlation of responses to the
four questions, the following pattern emerged: in those
departments where a higher percentage of employees
said they knew where to raise ethical concerns, and
where a higher percentage of employees said ethical
matters were regularly discussed, the result was a
higher percentage of employees who indicated they did
not fear reprisal for using the formal recourse
mechanism.
Prevention through education and dialogue about
“rightdoing” is much to be preferred over disclosure
and punishment of wrongdoing; which is not to
minimize the importance of these latter activities.
To the best of my knowledge there has never been a
whistleblower system that under performed because of
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too much communication and ongoing dialogue about
the changing environment in which ethical issues arise.
9 The Importance of Shared Leadership
Leadership matters greatly to the success of a
whistleblower system. This leadership has to be
collective rather than individual and it has to be found
on all levels throughout the political and the
administrative parts of government. Leaders need to
demonstrate commitment to the aims, provisions and
spirit of PSDPA.
There is a tendency in the media and in the public mind
to see the Public Sector Integrity Commissioner as the
defender of PSDPA and the protector of courageous
whistleblowers. As an Officer of Parliament the PSIC has
significant influence, but there are very real limits on
what he alone can accomplish in terms of preventing
wrongdoing and dealing with reprisals.
There is often debate over whether officers of
Parliament make more progress by being
confrontational and outspoken or by working
collaboratively with other parties and not “playing to
the grandstand.” The founding leader of the PSIC opted
for a preventative strategy that led her critics to
describe her as a “lapdog” of the bureaucracy because
she uncovered no cases of wrongdoing before she was
forced to resign, ironically due to a scandal involving
the use of her authority and the resources of her office.
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The second commissioner also did not serve a full term.
The fact that there have been three commissioners in
less than ten years has obviously weakened the
performance of PSIC office, but it has also contributed to
deficiencies in the overall system.
To date Parliament has done a poor job in reviewing the
backgrounds, qualifications and leadership philosophies
of the government nominees for the position of PSIC. It
has provided too little ongoing scrutiny of the office.
The primary accountability of PSIC is to Parliament, not
to the government. Parliamentary scrutiny puts
pressure on ministers and senior public servants to
demonstrate ongoing commitment to the PSDPA.
10 Conclusion
In summary, I am calling for: strengthened and
modernized legislation, clarified structures and
procedures, better coordination among the institutions
involved, closer central scrutiny of the performance of
departments and agencies, research on what
determines employee perceptions of potential reprisals,
further promotion of cultures of integrity and safety, the
selection and develop of leaders on all levels who
embody in their behaviour the values of PSDPA and,
finally more regular scrutiny by Parliament of the
operation of all components whistleblower system.
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