Public Sector Integrity Bill

Honourable colleagues, I rise to speak to Bill C-290, the public sector integrity act. The professional members of our public service play a fundamental role in our democracy by providing elected representatives with independent, nonpartisan advice, allowing them to make the best possible decisions with the best possible evidence for the good of the public. They are also first in the line of defence to protect the public interest from wrongdoing, whether illegal or improper, inside the machinery of government.

Having laws in place that effectively protect public servants who discover wrongdoing and give them the ability to come forward, freely and without fear of reprisals, to shine a light on wrongdoing is fundamental in our democracy.

Today, I want to talk about the importance of strengthening our current whistleblower law, the Public Servants Disclosure Protection Act, and why I support Bill C-290 that intends to do just that.

Colleagues, our current whistleblowing law has been in effect since 2007. Although it appears to be good in theory, it has been criticized by many for being wholly ineffective in practice. If our laws are not effective in practice, then they are not worth the paper they are written on. We are debating Bill C-290 after its unanimous passing in the other place because the current whistleblowing legislation is not working as it was intended.

Let me give a sobering fact to make this point clear. According to the findings of the 2021 International Bar Association report on whistleblowing laws in 38 countries: Canada ranked last. They found that Canada was tied with Norway and Lebanon in having the worst whistleblower-protection laws, only matching 1 out of 20 best-practice criteria.

The world has changed considerably since the Public Servants Disclosure Protection Act was passed some 19 years ago. I believe Bill C-290 will modernize our current legislation with the intent of making it more effective by giving public servants a tool to expose actions that are potentially illegal, unethical or inconsistent with public service values and to have those concerns acted upon in a fair and an impartial manner.

Honourable senators, I would also like to talk about what this bill is about and why it is worthy of being sent to committee for further study. The current problem that the bill is trying to address is not the lack of whistleblowing legislation in Canada but the ineffectiveness of the current law to protect whistle-blowers and the public’s interest.

As I mentioned earlier, we have legislation in place that was enacted 19 years ago to protect whistleblowers in the federal public service and to provide a process to allow them to come forward and expose unethical or illegal behaviour. This legislation is called the Public Servants Disclosure Protection Act. I would like to give context to where Bill C-290 comes from.

In 2017, the House of Commons Standing Committee on Government Operations and Estimates decided, at the request of the President of the Treasury Board, to conduct the first statutory review of the Public Servants Disclosure Protection Act since its implementation in 2007. They made 15 recommendations.

The committee report found that although some senior public servants believed that the act was working well, they could find no evidence to support this claim. They found that the act was lacking in six areas.

First was a lack of clarity around public interest proposed in the acts. Second, the disclosure mechanisms under the act do not necessarily ensure the protection of the public interest. Third, the act does not sufficiently protect whistleblowers from reprisal, as most of them face significant financial, professional and health-related consequences as a result of coming forward. Fourth, the committee held the perception that the federal organizational culture towards disclosure of wrongdoing seemed to be one of discouraging it. Fifth, mandatory annual reporting, as prescribed under the act, is inadequate to provide a meaningful evaluation of the effectiveness of the disclosure mechanism. Last but not least, sixth, public service external experts lack confidence in the adequate protection of whistleblowers under the act, mostly due to the potential conflicts of interest of those administering the internal disclosure process.

The committee issued that report in 2017; however, there had been no real progress in implementing their recommendations until the proposed legislation was introduced. Instead, the government announced in November 2022 its intent to appoint an external task force that would explore revisions to the Public Servants Disclosure Protection Act.

The report with recommendations is only expected by the end of this year. That means no action will be taken before the next election. We have before us an actual piece of legislation to improve whistleblower processes and the protection of public interest.

Let me now describe what the bill is about and how its simple terms were inspired by the 2017 report and recommendations of the House of Commons Standing Committee on Government Operations and Estimates. Our colleague and sponsor of the bill, Senator Dalphond, gave a detailed explanation of what is in the bill, including how to broaden the definition of the term “wrongdoing” and extend protection to cover more public servants involved in reporting such wrongdoing.

The legislation would also provide increased fines for reprisal against the whistleblower and extend the period in which a reprisal complaint might be filed and, importantly, it requires the act to be reviewed every five years.

These are just a few of the specific measures in the bill that seek to better protect whistleblowers who stand up for the values of public service and the ethical standards necessary to protect the public interest — but will they?

I want to go back to something I said at the start of my comments about the recent international study on whistleblower protection undertaken by the International Bar Association and how this bill proposes measures compared to accepted best practices around the world.

The International Bar Association examined 38 countries’ whistleblowing protection and found that Canada was last in having any of the 20 best practices around the world.

This past January, the Whistleblowing International Network sent a letter signed by 16 national and international whistleblowers’ advocacy organizations to the Prime Minister and opposition leaders stating their support for Bill C-290. They said that Bill C-290 is a final step towards reform of Canada’s ineffective federal whistleblower protection law. Such a reform is long overdue in our country.

They also said that Bill C-290 will upgrade the Public Servants Disclosure Protection Act to largely comply with 8 of the 20 global best practices for whistleblower laws, including full subject matter scope for protection, protection in a refusal to violate the law, protection against spillover retaliation directed at those who assist or are associated with whistleblowing, reliable identifying protection, due process if the Public Sector Integrity Commission does not help, discipline and accountability, a realistic statute of limitation and periodic review of the statute records.

Colleagues, in conclusion, although this bill is not perfect, it is a positive step in the right direction. The legislation is about strengthening our whistleblowing legislation and its effectiveness.

As the Whistleblowing International Network stated in the letter I mentioned earlier:

These are important initial steps towards establishing a foundation for credible protection. There is no need for further delay in enacting these reforms.

Effective whistleblower legislation is about loyalty to the truth and allowing our professional public servants do what is right: to uphold the values and ethical standards that make our professional public service one of the best in the world. However, colleagues, there is no point in asking them to uphold public service values or maintaining high ethical standards in public service if we do not give them the tools to do so.

Although Canada is committed to stronger whistle-blowing laws, the current legal framework is simply not working for would-be whistle-blowers and the protection of the public. It falls short of internationally recognized best practice.

I think we can all agree that effective protection of whistle-blowers and the handling of protected disclosure is essential in promoting the rule of law and preventing corruption in our country. This is why I believe, colleagues, this bill has merit and should proceed to committee where members can hear from public service employees and national and international experts on how best to protect whistle-blowers and the public interests.

Thank you very much for your consideration.