Whistle-Blowing and Disclosure of Wrongdoing March 9 th, 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 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... (def): the unauthorized public disclosure of privileged information by an employee to protect the public interest (def): the unauthorized public disclosure of privileged information by an employee to protect the public interest must be unauthorized must be unauthorized must be public must be public must be information the employee has access to by virtue of their job position must be information the employee has access to by virtue of their job position –i.e. not simply personal opinion – vs. internal disclosure of wrongdoing

Whistleblowing... the issue? the issue? – appropriate balance between individual rights of the employee, professional responsibilities, and their duty of loyalty to their employer individual rights individual rights –freedom of speech (rights as citizens) professional responsibilities professional responsibilities –duty to protect the public interest (as public servant) duty of loyalty (as government employee) duty of loyalty (as government employee) –“Public servants owe a duty of loyalty to their employer. In serving the public interest, they are entrusted, as a fundamental part of their duties, with access to a wide range of government information and are required to treat this information responsibly and with discretion and integrity.” (TBS, PIDI 2001) – deciding whether whistleblowing is justified in particular cases

Broader Issues How broad should justifications for whistle- blowing be drawn? How broad should justifications for whistle- blowing be drawn? Does punishment of whistle-blowers violate their individual rights? Does punishment of whistle-blowers violate their individual rights? how much protection should be provided to whistle-blowers? how much protection should be provided to whistle-blowers? How much secrecy is tolerable/necessary in a democracy? How much secrecy is tolerable/necessary in a democracy? Will protection for whistle-blowers improve the performance of the public service? Will protection for whistle-blowers improve the performance of the public service? Why? Why? Why not? Why not?

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 and the Sponsorship Scandal whistleblower protection in place at the time of the Sponsorship Scandal? whistleblower protection in place at the time of the Sponsorship Scandal? NONE!! NONE!! broader context of whisteblowing in the Government of Canada broader context of whisteblowing in the Government of Canada Joanna Gualtieri, Foreign Affairs Joanna Gualtieri, Foreign Affairs Shiv Chopra et al., Health Canada Shiv Chopra et al., Health Canada Brian McAdam (Immigration Canada) and Cpl. Robert Reid (RCMP) Brian McAdam (Immigration Canada) and Cpl. Robert Reid (RCMP)

WhistleBlowing and the Sponsorship Scandal whistleblower protection in place at the time of the Sponsorship Scandal? whistleblower protection in place at the time of the Sponsorship Scandal? broader context of whisteblowing in the Government of Canada broader context of whisteblowing in the Government of Canada Allan Cutler and the Sponsorhip Program Allan Cutler and the Sponsorhip Program

Whistleblowing basic description of whisteblowing, related issues, and the whistleblowing regime basic description of whisteblowing, related issues, and the whistleblowing regime the whistelblowing regime and the context of the Sponsorship Scandal the whistelblowing 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 internal vs. external disclosure internal vs. external disclosure –“However, in certain exceptional circumstances an employee might be justified in making an external disclosure: for example, when there is an immediate risk to the life, health or safety of the public. Employees might be also justified in making an external disclosure where they have exhausted all internal procedures.” (TBS, PIDI 2001) wrongdoing vs. judgement wrongdoing vs. judgement –“It is recognized that deputy heads are responsible for making decisions which involve weighing the risks and benefits of various courses of action and selecting approaches which they consider to be in the best public interest, including some that carry with them a risk. The judgement call that results from a balanced and informed decision- making process would not be considered a wrongdoing within the scope of this policy.” (TBS, PIDI 2001)

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 2005) Bill C-11 (November 2005) 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-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) 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 – 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 – 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.

MidTerm Exam Grades Q1Q2Q3Q4Q5Q6Exam Highest100% 100% (x2) 90% (x2) 100% 100% (x2) 100%97% >90%10%16%11%21%20%15%12% >80%20%32%17%37.5%33.3%48.4%22% Avg.69.7%71.3%68.1%73.7%68.9%76.5%71.0%

Gomery Recommendations Re: Whistleblowing outline outline

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? – what is the public interest? life life health/safety health/safety environment? environment? wasting tax dollars? wasting tax dollars? – what is the appropriate burden of proof? – does the whistle-blowing seem likely to contribute to changes protecting the public interest? has the threat to the public interest already been rectified? has the threat to the public interest already been rectified? – who should judge? the whistle-blower? the whistle-blower? the government the government a third party a third party

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? – Does it matter if the whistle-blower is right or wrong? – How wrong is acceptable? (i.e. what is the standard of proof that the whistle-blower ought to assume?)

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith?

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? does pursuing the issue through internal channels make sense in the circumstances? does pursuing the issue through internal channels make sense in the circumstances?

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job?

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? – undermine the ability of the office to perform its functions?

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Were the actions of the whistle-blower proportionate to the public interest at stake? Were the actions of the whistle-blower proportionate to the public interest at stake?

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Were the actions of the whistle-blower proportionate to the public interest at stake? Were the actions of the whistle-blower proportionate to the public interest at stake? – release only of necessary information

Criteria – Is Whistle-Blowing Justified? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in the public interest? Is the whistle-blower acting in good faith? Is the whistle-blower acting in good faith? Has the whistle-blower exhausted internal channels? Has the whistle-blower exhausted internal channels? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Does the whistle-blowing prejudice the ability of the whistle-blower to do their job? Were the actions of the whistle-blower proportionate to the public interest at stake? Were the actions of the whistle-blower proportionate to the public interest at stake? – release only of necessary information – release of information in appropriate public forum?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? – did the government ask the previous five questions?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Was proper procedure followed? Was proper procedure followed?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Was proper procedure followed? Was proper procedure followed? was the whistle-blower formally reprimanded and given official reasoning for the reprimand? was the whistle-blower formally reprimanded and given official reasoning for the reprimand?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Was proper procedure followed? Was proper procedure followed? was the whistle-blower formally reprimanded and given official reasoning for the reprimand? was the whistle-blower formally reprimanded and given official reasoning for the reprimand? was unofficial pressure placed on the whistle- blower? was unofficial pressure placed on the whistle- blower?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Was proper procedure followed? Was proper procedure followed? Does the restricted action infringe the rights of the employee as little as reasonably possible? Does the restricted action infringe the rights of the employee as little as reasonably possible?

Criteria – Is Disciplinary Action Justified? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Did the government do a test of balance between the rights of the whistleblower as a citizen and their duty of loyalty? Was proper procedure followed? Was proper procedure followed? Does the restricted action infringe the rights of the employee as little as reasonably possible? Does the restricted action infringe the rights of the employee as little as reasonably possible? Is the disciplinary action proportionate to the seriousness of the offence? Is the disciplinary action proportionate to the seriousness of the offence?