This piece first appeared in the Hill Times on February 27, 2017.
When examining the sorry track record of the Public Sector Integrity Commissioner’s Office, it’s easy to overlook those primarily responsible: it was Privy Council Office (PCO) and the Treasury Board Secretariat (TBS), working mostly behind the scenes, who—intentionally or not—set up PSIC to fail. Here’s how it was done.
The Role of Treasury Board:
Treasury Board drafted faulty legislation
Given the wide range of serious shortcomings in the Public Servants Disclosure Protection Act (PSDPA), it’s difficult to believe that the drafters intended it to work—unless they were completely oblivious of best practices and other jurisdictions’ experience.
The most glaring example of this is the absence of a ‘reverse onus’ provision. The PSDPA puts the onus on whistleblowers to prove that the actions taken against them were reprisals—an almost impossible task. Effective whistleblowing laws shift the burden of proof to the employer to show that adverse actions were not intended as reprisals. This has been well understood for literally decades—since the disastrous experience of the Merit System Protection Board (in the U.S.) in the early 1980s. Without a reverse onus, of the first 2,000 whistleblowers who submitted claims of reprisal, only four prevailed.… Read the rest
Posted by DavidH on March 11, 2017
This piece was first published in the Hill Times on February 20, 2017.
Last week, I wrote about the shortcomings of our government whistleblower protection system by examining the law itself. But that’s only half of the story: the efficacy of the program depends equally on those managing it, especially the Public Sector Integrity Commissioner.
This position, created in 2006, is a powerful one: the commissioner is an agent of Parliament, like the auditor general, with formidable investigative powers. However, unlike the Office of the Auditor General, the Office of the Integrity Commissioner (PSIC) does not have a proud track record—in fact it has been a troubled agency from day one.
These troubles have arisen, not because of the many shortcomings in the law but because of the actions of successive com- missioners, some of whom have consistently been criticized by the auditor general or the courts for neglecting their mandate and abusing their authority.
Over the past decade, all three successive commissioners have used similar methods which, by design or not, result in whistleblowers being discouraged or prevented from going to PSIC—and being denied protection when they do. Let’s look at a few examples.
The first two commissioners—In several cases Ouimet and Dion—both took steps to water down or re-interpret PSIC’s mandate.… Read the rest
Posted by DavidH on March 6, 2017
This piece was first published in the Hill Times on February 13, 2017.
Whistleblower protection advocates across Canada were celebrating last week when the news broke that Hon. Scott Brison, President of Treasury Board, had suddenly asked the Government Operations Committee (OGGO) to conduct a review of the federal whistleblower protection law (the PSDPA). This review, which by law should have taken place 5 years ago, has been steadfastly blocked by Treasury Board since 2012. Why the sudden change of heart? No-one knows.
The big question now is whether members of OGGO can find the time, determination and resources to do justice to this very important task, handed to them at very short notice.
Hearings began on Tuesday, and on Thursday morning three civil society witnesses were called – Allan Cutler, David Yazbeck and myself. We presented damning testimony regarding the dysfunctional nature of both the law and the Integrity Commissioner’s office. We pleaded with the committee to call a wide range of follow-up witnesses – outside experts rather than those running the system – in order to obtain a proper understanding of how badly broken the current system is. And we offered detailed suggestions on how to fix it.… Read the rest
Posted by DavidH on February 20, 2017