Speech at the parliamentary committee concerning Bill 87 (1st hearing)
(The following is a translation of the original speech written and delivered in French.)
Thank you for allowing the Québec Ombudsman first place at the podium within the framework of your deliberations on Bill 87, An Act to facilitate the disclosure of wrongdoings within public bodies. The role conferred on this National Assembly institution once the Act is assented to will be critical for achieving its goals.
Before addressing certain issues that emerged from our analysis of the Bill, I wish to insist on the importance of this piece of legislation. It is obviously the result of a serious exercise which took into account the principal recognized international standards in the disclosure of wrongdoings and protection against reprisal. It also takes into consideration disclosure experiences in Canada and abroad.
Many parliaments have legislated on this question because it is a contemporary issue that is key to good governance and public service probity.
Sound management and good governance of public bodies are crucial to ensuring quality services for the benefit of citizens. Every component of the government and all its players must exemplify probity. And yet, it can happen that ill-intentioned people act in ways that run counter to the common good. The people aware of these wrongdoings and who disapprove of them do not always know who to go to or where to go in order to disclose them and to have the perpetrators taken to task. They are afraid they will be ostracized if they denounce a colleague or, worse yet, a boss, contractor, or worker on whom they rely for services and care.
For these people, the balance between their duty to be loyal to their employer and their ethics which demand that they speak out is difficult to achieve. Some of them, well-intentioned but misinformed, may feel that speaking out publicly is the right course of action. In such a case, they may tarnish, if not destroy, the reputation of the presumed authors of the alleged wrongdoings. They may also, and rightly so, fear the consequences of such revelations.
This is why it is vitally important that there be an effective mechanism for facilitating disclosure that provides solid protection for whistleblowers and that, by extension, ensures their confidentiality. Confidentiality—it would be a mistake to underestimate this dimension—is equally important in preserving the presumption of innocence and the reputation of alleged perpetrators and in unimpeded legal recourse.
The disclosure of wrongdoings in good faith and without fear of reprisal will be an additional guarantee of the quality of Québec’s public services. If the first goal of the Act is to detect wrongdoing and punish the authors of the wrongdoings committed, it will also make it just as possible to act in timely fashion to prevent the commission of these acts, in the greatest public interest. Compliance with this Act will be another way of bolstering public confidence in the probity of the governance of Québec’s public bodies.
My team and I examined the Bill’s scope and provisions keeping in mind the importance of achieving the Bill’s goals, namely, to facilitate the disclosure of wrongdoings and to establish a system for protection against reprisal. Today I am presenting the results of this examination. I will discuss the issues surrounding the Québec Ombudsman’s future application of the Act. Following this, I will present our recommendations.
1. Examination of the scope of the Bill and its provisions in light of the goals of the Bill
We paid special attention to three fundamental dimensions:
- first: the public bodies subject to the Bill, so as to ensure that, in the context specific to Québec, there are no unwarranted exclusions.
- second: the nature and scope of wrongdoings, so that the greatest possible number of situations in which wrongdoing could be committed is covered, and to make the people who could be involved subject to the Bill.
- third: protection against reprisal, a prerequisite for the effectiveness of a disclosure mechanism and which, unfortunately, is often the weak link.
The public bodies subject to the Bill
Section 2 of the Bill lists the public bodies subject to its application in eight categories. According to our estimate, as at January 1, 2016, more than 500 bodies and entities would have been subject to it. In all, this translates into some 680,000 employees. It is appropriate that all these public bodies be subject to the Bill.
We compared the list of applicable bodies with that of the bodies subject to the Anti-Corruption Act, a law whose purpose is to strengthen actions to prevent and fight corruption in contractual matters within the public sector. Since these texts have complementary albeit distinct bodies to which they apply, it seems to me that their respective scopes should be basically the same. I draw your attention to certain entities omitted from the list in section 2 of Bill 87:
- municipal entities;
- private institutions accredited for the purposes of subsidies under the Act respecting private education;
- private institutions under contract, private seniors’ residences, community organizations and certain other bodies within the health and social services network subject to the Act respecting the Health and Social Services Ombudsman;
- the National Assembly’s administrative services;
- childcare centres, daycares and coordinating offices.
It is important to determine, at this stage, whether these exclusions from the Bill are appropriate.
From the outset, I must point out that when it comes to disclosure of wrongdoing, municipal bodies are not covered anywhere in Canada. Clearly, the rationale is that they are distinct from the government and even constitute another level of government. It seems to us that their exclusion in the context of modern Québec—more specifically, the work of the Commission of Inquiry on the Awarding and Management of Public Investigations in the Construction Industry and the investigations of the permanent anti-corruption squad (UPAC)—is hard to justify without looking into it further. The core question is therefore, are there other adequate forms of recourse that are viable alternatives for people who disclose wrongdoings presumed to have been or likely to be committed within a municipality?
The Municipal Ethics and Good Conduct Act already contains a mechanism whereby “any person who has reasonable grounds for believing that a member of a council of a municipality has violated a rule of the applicable code of ethics and conduct may raise the matter with the Minister.” Further to a preliminary examination, the Minister may refer the matter to the Commission municipale du Québec for an inquiry. Note that the Ministère des Affaires municipales et de l’Occupation du territoire and the Commission municipale are bodies independent from municipalities. In this way, the principle of independence is upheld and I have no reason to doubt that the Department and the Commission are impartial.
However, this mechanism is flawed because there is no provision for disclosures concerning municipal employees or wrongdoings other than the kinds identified in the code of ethics and good conduct. This means that they are not covered in the mechanism in place, nor is there protection against reprisal. Even the mechanism in effect for elected officials does not ensure whistleblowers’ confidentiality or their protection should reprisal occur.
This mechanism could be strengthened effectively and at minor cost. Or perhaps making municipal entities subject to Bill 87 could be deemed a more appropriate course of action. We are therefore suggesting two possible avenues:
- Amend the Municipal Ethics and Good Conduct Act to enable the Ministère des Affaires municipales et de l’Occupation du territoire and the Commission municipale du Québec to also receive disclosures concerning municipal employees. It would then be fundamental for the Act to provide for all required protection against reprisal for whistleblowers who make a disclosure pursuant to the Act and for guarantees as to confidentiality; (Recommendation 1)
- Amend Bill 87 to make municipal entities subject to it. However, to prevent overlap by the two mechanisms, it would be advisable, without amending the Municipal Ethics and Good Conduct Act, to provide that the Québec Ombudsman put an end to the processing of a disclosure if the alleged wrongdoing is already being examined as the result of an investigation under the Act, or if a decision about the disclosure has been rendered by the Commission municipale du Québec. (Recommendation 2)
Private institutions under contract, private seniors’ residences, community organizations and certain other bodies within the health and social services network subject to the Act respecting the Health and Social Services Ombudsman.
This exclusion narrows the scope of the future Act from that of the Act respecting the Health and Social Services Ombudsman and the Anti-Corruption Act. In fact, the latter includes “any public institution or private institution that is a party to an agreement referred to in the Act respecting health services and social services.”
Because private institutions party to an agreement provide government-subsidized health services and social services at regulated fees, I feel that they should be subject to the projected Act, if only minimally. (Recommendation 3)
The administrative services of the National Assembly
These services, which exclude MNAs and political staffers, are already subject to the Public Protector Act. They are not mentioned in section 2 of the Bill; this is probably an oversight, and I recommend that they be included. (Recommendation 4)
Private institutions accredited for the purposes of subsidies under the Act respecting private education
Childcare centres, day care centres benefiting from subsidized childcare spaces and home childcare coordinating offices
I see that these entities, with regard to which UPAC can intervene under the Anti-Corruption Act, are not mentioned in section 2. If the legislator decided to include them, the Québec Ombudsman could assume the mandate.
Disclosures concerning the Québec Ombudsman itself
It goes without saying that the Québec Ombudsman will be subject to the future Act. However, I consider it important that a distinct organization be tasked to receive and process disclosures of wrongdoing that may be committed within or with regard to the Institution. (I will come back to this in a moment). Even if there is an in-house procedure, an independent body is crucial to preserving the impartiality—real or perceived—needed for the effectiveness and very credibility of the disclosure process.
I therefore recommend that the Bill be amended so that, in the situation referred to above, the whistleblower can approach another institution of the National Assembly, namely, the Ethics Commissioner. (Recommendation 5) He would have the same powers as those conferred on the Québec Ombudsman for that purpose in the future Act, and whistleblowers and the alleged perpetrators of wrongdoings would have the same protections and guarantees, including the confidentiality required.
The nature and scope of wrongdoing
The second dimension we examined is most important because it defines the nature of the actions considered wrongdoings and which, as a result, may be disclosed in a protected environment. Here, the important thing is to make sure that any actions that should be considered reprehensible are not omitted.
In our opinion, sections 3 and 4 of the Bill provide a clear and sufficiently flexible definition of what a reportable wrongdoing is or is not. This definition affords sufficient interpretative leeway and will facilitate the implementation of the future Act in order for its basic goals to be attained.
However, in order to better assure that the goals of the Bill are achieved, I have a recommendation. (Recommendation 6)
One of the goals of the Bill is to “facilitate the disclosure of wrongdoings committed or about to be committed within public bodies.” My opinion is that the acts qualified as wrongdoings must also include those committed with regard to public bodies. This is the scope afforded by most Canadian legislation.
The concrete advantage of this addition would be the ability to cover wrongdoings against public bodies by people who are not government employees. For instance, these acts, which have an adverse effect on these bodies, could be committed by consultants, mandataries or suppliers. Take, for example, the sub-contractor who uses his relationship with a government body to misappropriate its funds or property, or a consultant’s personal use of a government body’s material or information resources. Whistleblowers can just as easily be suppliers or public service users as government employees.
Public disclosure in the case of serious and imminent risk
Under section 6 of the Bill, when certain well-defined conditions coalesce—the urgency of a situation, wrongdoing that poses a risk to a person’s health or safety or to the environment—a person may “disclose to the public any information he or she considers reasonably necessary to avoid that risk.” In such cases, whistleblowers would enjoy the same protection against reprisal as if they had gone to the responsible authority within his or her government body or to the Québec Ombudsman.
Even if there are those who would like to see public disclosure allowed and protected all the time and for every wrongdoing, I consider that the guidelines provided for are reasonable and will make it possible to prevent tarnishing of the reputation of people wrongly blamed.
I would like to highlight the fact that section 6, inspired by similar provisions in other legislation in Canada, also provides for disclosure prior to public disclosure. Whereas these pieces of legislation refer to a competent law enforcement agency, instead, the Bill stipulates prior disclosure “to a police force or the Anti-Corruption Commissioner.”
I feel that specifically identifying these instances is restrictive and that they may not always be the most appropriate place to go in preventing the anticipated danger. This is why I am recommending that section 6 of the Bill be amended so that the only reference, in addition to “police force,” is “a competent law enforcement agency.” (Recommendation 13)
Protection against reprisal
This issue leads me incidentally to another which I consider just as crucial because it is at the very heart of the real-life effectiveness of the mechanism proposed by Bill 87.
It consists in determining what kind of protection the Act will afford and for whom. Even though the Bill stipulates that any person may make a disclosure pursuant to section 5, protection against reprisal seems exclusively related to the notion of employment. The Bill is designed first and foremost to protect whistleblowers who are civil servants—and not third parties—against practices that employers are prohibited from engaging in, in accordance with the Act respecting labour standards. These practices therefore apply regarding people not on the pay roll, who may be employees of a public body or a private company. However, there is no specific protection against reprisal unrelated to employment.
As I see it, it is vital to give these third parties equivalent protection since the Bill rightly empowers them to disclose wrongdoing. We do not have to look very far to find examples where third-party whistleblowers can be made to pay the price for their disclosures. For example, what becomes of a parent on a Parents’ Committee who speaks out against wrongdoing by the school board and who finds himself expelled from the committee, or whose child is penalized as a result? What about a consultant whose contract is cancelled further to disclosure or who, unjustly, no longer qualifies for new contracts?
None of these situations appears to be covered by the Bill as it now stands. This is why I am recommending (in recommendation 7) that anyone who believes that they have been the victim of non-employment related reprisals by a public body can turn to the Québec Ombudsman, which will then conduct an impartial investigation. If the allegations prove substantiated, it will notify the highest authority of the body concerned, even the Minister or the National Assembly, and would make any recommendation deemed appropriate in order to rectify the situation.
Disclosure mechanisms within public bodies
In another vein, section 5 of the Bill gives precedence to recourse to the Québec Ombudsman in matters of whistleblowing, while offering employees the possibility of contacting the designated in-house officer.
To foster employees’ trust in this mechanism and public trust in the bodies subject to the Act, consistency and uniformity in how disclosures are processed must prevail, even though each body must have its own procedure. The reference document that the Québec Ombudsman will produce should reduce disparities.
My opinion is also that the Bill must provide the executive directors of public bodies with guidelines for designating the in-house officer responsible for handling disclosures. Details as to this subject, as well as rules governing exercise of this responsibility alongside other functions, would attest to the importance accorded to this responsibility.
I also recommend that the bodies subject to the Act be obliged to account for application of the Act in their annual reports. (Recommendation 14) This could be done the same way as for the data concerning the protection of personal information and ethics, for example. It seems to me that such accountability is essential for fostering public trust as well as for better assessment of the success of the mechanism established within public bodies.
2. The Québec Ombudsman’s mandate within the projected mechanism
As you can see, the Québec Ombudsman will have a leading role in the proposed disclosure mechanism and, as such, will have to act with complete confidentiality by ensuring that the rights of everyone involved are preserved. I must reiterate that the procedure that is applied must not only protect the identity of whistleblowers and witnesses, but also that of the alleged perpetrators of the wrongdoing.
Fortunately, the Québec Ombudsman is experienced in this matter because of the high level of confidentiality associated with the investigations it conducts. There already are stringent measures that enable it to preserve this confidentiality, and all of these measures are written into the Bill.
The Québec Ombudsman’s powers
That being said, I feel that for the Québec Ombudsman to fully play its role, it must maintain all the principal powers it already has under the Public Protector Act and the Act respecting the Health and Social Services Ombudsman, as well as those of a commissioner of inquiry, which the Bill already refers to. These powers enable a preventive role.
Here I am referring in particular (and our brief addresses each power in greater detail) to the powers of the designated person to intervene on his or her own initiative, to suggest reforms so that the problematic situations observed do not recur, and to comment publicly on his or her interventions. (Recommendations 9 and 10)
An additional power, very closely connected to its general investigative power, appears to me to be necessary given the specific nature of the Québec Ombudsman’s interventions further to disclosures of wrongdoing, namely, that of access to the premises of a public body that is being investigated. This possibility, which is not included in the Act respecting public inquiry commissions, would give the Québec Ombudsman’s investigators access to premises when it deems it useful for conducting audits and investigations. (Recommendation 11)
The Québec Ombudsman’s role
Above and beyond its leading role in processing disclosures, for which these additional powers appear necessary, the Québec Ombudsman will also be called upon to exercise other important functions in terms of the performance of the process overall, notably as an adviser to the public bodies subject to the Act, and as a provider of information to potential whistleblowers. These functions will require considerable efforts on its part.
So, even before being able to process disclosures, we will have to draft and distribute a procedure for our handling of disclosures. We will also be responsible for producing and publishing “a reference document for public bodies on the procedure to be established.” The document will have to be presented to the in-house disclosure officers of public bodies once they are appointed.
One of the roles that the Québec Ombudsman will be called upon to play is that of providing advice and support, primarily to the highest ranking administrative official of these bodies and to the designated officers, but also to their employees and employee representatives such as labour unions.
Furthermore, once the disclosure mechanism is operational, the Québec Ombudsman will have to respond to information requests from anyone “about the possibility of making a disclosure” and to requests for “advice on the procedure or making a disclosure.”
The cooperation of public bodies
With this as a backdrop, and considering the magnitude of the Québec Ombudsman’s multiple roles in process performance, I feel that the cooperation of the bodies subject to the Act is essential. Not only for audits and investigations, but also for publicizing the disclosure mechanism and the rights of the people concerned.
This is why I recommend that the Bill contain a general obligation for the public bodies subject to the Act (employees and directors) to cooperate with the Québec Ombudsman within the framework of its application of the Act.
3. The issues related to implementation of the Act
The challenge of implementing the Act incumbent on the Québec Ombudsman is stimulating, but also daunting, as you can see. One of the factors, and I insist on it, is that the Québec Ombudsman’s current mission, which is crucial to ensuring that citizens’ rights are upheld in their interactions with public services, must not suffer.
As soon as the Act is assented to, the Québec Ombudsman will have to start work on staffing and information resources and on communications with all interested parties, draft the procedure for processing and following up on disclosures, and produce the reference documents for public bodies These actions will require considerable ongoing efforts before even the first disclosure can be processed.
It is clear that the Québec Ombudsman cannot carry out this mandate with all due competence and rigour unless the required resources and means are marshalled. Aware of budgetary issues, we have produced a rigorous and conservative estimate of the resources needed for us to properly assume the additional responsibilities in connection with the disclosure of wrongdoings.
That being said, it is paramount that planning and start-up of the activities related to this mandate not be derailed because of a lack of basic resources.
Some will criticize the fact that the Bill, if passed, will only apply to the public sector. Be that as it may, the Bill is a major step forward. The mandate that the Québec Ombudsman will be given is, among other attributes, broader than that of other parliamentary ombudsmen in Canada to date.
The selected mechanism is promising, and even more so because simple improvements can be incorporated into it to ensure that it operates optimally. And this Bill could certainly serve to inspire any private organization or enterprise interested in self-regulation in matters of probity and good governance.
My team and I enthusiastically welcome the prospect of exercising this additional mandate that the legislator would confer on the Québec Ombudsman. We are fully aware of the issues and requirements.
Thank you for your confidence in us and I reiterate that the Québec Ombudsman is determined to engage this future responsibility in a competent and impartial manner.