Whistle-Blowing and Disclosure of Wrongdoing (Cont’d) March 21st, 2006

Whistleblowing basic description of whisteblowing, related issues, and the whistleblowing regime basic description of whisteblowing, related issues, and the whistleblowing regime the whistleblowing regime and the context of the Sponsorship Scandal the whistleblowing regime and the context of the Sponsorship Scandal whistleblowing and the Gomery Recommendations whistleblowing and the Gomery Recommendations

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 – guide for internal disclosure of wrongdoing – policy – not legislation no legal sanctions against reprisals no legal sanctions against reprisals – Public Service Integrity Office, 2001 part of TBS part of TBS not an indpendent officer of Parliament (e.g. Auditor General, Information Commissioner, Privacy Commissioner) not an indpendent officer of Parliament (e.g. Auditor General, Information Commissioner, Privacy Commissioner)

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 Values and Ethics Code for the Public Service, 2003 Values and Ethics Code for the Public Service, 2003 – whistle-blowing protection integrally related to public service charter – e.g. breaching the Code or forcing another public servant to breach the Code covered under disclosure policy

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 Values and Ethics Code for the Public Service, 2003 Values and Ethics Code for the Public Service, 2003 Bill C-11 (November 2004) Bill C-11 (November 2004) precursor – Bill C-25 precursor – Bill C-25

Bill C-25  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; – requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) Public Sector Integrity Commission Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports annually to Parliament through a Minister; – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing restrictions on whistleblowing and disclosure of wrong-doing – allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith; – disclosure to outsiders limited to... a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment. another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

Bill C-11  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; – requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions – more clearly stated than Bill C-25) Public Sector Integrity Commission Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports directly to Parliament – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing restrictions on whistleblowing and disclosure of wrong-doing – no penalty mechanisms for disclosures made in bad faith; – disclosure to outsiders limited to... a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment. another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

Gomery Recommendations Re: Whistleblowing agrees that disclosure to the Public Sector Integrity Commission or to the public only be permitted in “exceptional” circumstances agrees that disclosure to the Public Sector Integrity Commission or to the public only be permitted in “exceptional” circumstances suggested changes suggested changes – moderate strengthening of existing provisions broadened to cover anyone carrying out work on behalf of the Government; broadened to cover anyone carrying out work on behalf of the Government; open list of “wrongdoings” and “reprisals” open list of “wrongdoings” and “reprisals” burden of proof (re: reprisals) should be on the employer burden of proof (re: reprisals) should be on the employer

Gomery Recommendations Re: Whistleblowing possible effects of strengthened whistle- blowing protection? possible effects of strengthened whistle- blowing protection? – will have little effect doesn’t go far enough – “whistleblower management” act (Gualtieri) doesn’t go far enough – “whistleblower management” act (Gualtieri) – would prevent wrong-doing in the first place (Gomery) – may create an environment of distrust and avoidance of risk