February 21, 2005

The bill for Canada's first whistleblowing law is considered one of the Martin government's key reforms in cleaning up government, as well as a critical lever in encouraging bureaucrats who have information about the sponsorship scandal to come forward without fear.

The new bill is expected to create a Public Service Integrity Commissioner as the neutral third party to investigate complaints and allegations, although many fear this new officer will be reporting through a minister, rather than directly to Parliament. That would undermine the office's independence and jeopardize its credibility among public servants.

The government has received three studies on whistleblowing in recent months and all called for an independent watchdog who reported to Parliament as do the auditor general, official languages commissioner, information commissioner, chief electoral officer and privacy commissioner.

"My hope is this official will be an agent of Parliament because people understand that comes with a substantial measure of independence and autonomy, which goes to the public service's perception that their allegations will be treated fairly and objectively," said Ken Kernaghan, the Brock University professor who chaired a working group on whistleblowing.

NDP MP Pat Martin, who co-chaired a parliamentary subcommittee on whistleblowing, said a commissioner who reports directly to Parliament is the only way to build confidence among bureaucrats in the office, while ensuring its investigations and enforcements are conducted "completely unfettered." Mr. Martin argued bureaucrats wouldn't come forward with allegations of ministerial interference or meddling, like those at the centre of the sponsorship scandal, if the report was vetted by a minister first. "What if a minister is involved in the allegations? It's crazy," he said.

The bill is the first to offer bureaucrats legal protection against reprisals for blowing the whistle on wrongdoing in government. It is expected to cover all federal employees in departments and Crown corporations, except those who work in the House of Commons, ministers offices and on national security issues, including RCMP, CSIS, Communications Security Establishment, National Defence and the new Canada Border Services Agency.

Mr. Martin said the NDP wants protection for all employees, but didn't want the bill to get delayed in wrangling over how to encourage and protect whistleblowers whose revelations could compromise state secrets. He said the priority is to get the bill passed to offer whistleblowing protection for bureaucrats who may have information about the sponsorship scandal.

The bill replaces the government's feeble "internal disclosure policy," which was widely dismissed as a failure because it had no credibility among public servants. Critics, including Public Service Integrity Officer Edward Keyserlingk, said the policy was so weak that it actually prevented people from coming forward with problems. The office never received any complaints about any of the mismanagement fiascos that have dogged the Liberals in recent years.

The legislation, to be introduced by Privy Council President Denis Coderre, will be built around the 34 recommendations of Mr. Kernaghan's working group, which included Mr. Keyserlingk and former auditor general Denis Desautels. They called for a new independent agency with sweeping investigatory powers that could even reach into cabinet ministers' offices.

Their report also argued the integrity commissioner should have the authority to launch an investigation without an official complaint. They recommended bureaucrats be encouraged to raise concerns with supervisors first, but also have the option of going directly to the new agency.

But the group said whistleblowing protection is only one step. It said the government also needs broad reforms in leadership, screening and selecting senior executives and performance management to create a new culture where "wrongdoing is discouraged and rightdoing is actively promoted."

Mr. Kernaghan said the bill should also embed the values expected of public servants so they clearly know the standard of behaviour expected and what constitutes wrongdoing.

For MPs, the big concern is that the bill be passed before the election because many fear the issue will fall off the radar screen when a new government is elected and that the legislation would never be passed. In the meantime, Treasury Board President Reg Alcock has offered blanket whistleblowing protection for any bureaucrats who do come forward.

In an unusual move, the bill will be sent to the Commons government operations and estimates committee after first reading so MPs can put their stamp on the bill. A bill is normally referred to committee after second reading, leaving little room for substantive changes.

Liberal MP Paul Szabo, who chairs the committee, said the move gives MPs a "free hand" in shaping the bill and its provisions. He said the committee, having wrestled with the issue during the Radwanski affair, is well versed and should deal with the bill quickly.

The push for whistleblower protection has been debated for years, but leapt to centre stage during the Radwanski affair. A whistleblower tipped off the Commons government operations and estimates committee about irregularities at the Privacy Commission which sparked an investigation that led to Privacy Commissioner George Radwanski's resignation, an auditor general probe and RCMP investigation.

More recently, longtime bureaucrat Allan Cutler told the public accounts committee he blew the whistle on contracting irregularities at Public Works advertising branch that led to an audit in 1996. That audit found many of the same irregularities that Auditor General Sheila Fraser uncovered in her damning report on the sponsorship program.