t he time this article was written Senator Noël A. Kinsella was Deputy Leader
of the Opposition in the Senate.
On 31 January 2001, Senator
Noël Kinsella introduced Bill S-6, the Public Service Whistle-blowing Act. It
is virtually identical to a Bill introduced in the previous Parliament but
which died on the Order Paper with the dissolution of Parliament. The purpose
of the Bill is to establish a mechanism for dealing with the reporting of
wrongdoing in the federal Public Service. On February 22, 2001, the Senate
agreed to send the Bill back to the Committee on National Finance where it was
at dissolution. This article is based on remarks by Senator Kinsella in the
Senate on December 14, 1999 and in testimony to the Committee on National
Finance on April 5, 2000.
The Bill speaks to a
contemporary, professional public service that we are fortunate to have here in
Canada. Indeed, the Public Service of Canada is second to none in the world.
A report entitled A Strong
Foundation was commissioned by the Clerk of the Privy Council a few years
ago, chaired by the late John Tait. The purpose of A Strong Foundation
was to help the Public Service think about and, in some cases, rediscover and
understand its basic values and recommit to and act on those values in all its
Some of the issues and problems
identified as concerns of public servants of Canada include evolving
conventions about accountability; tension between old values and new; ethical
challenges emerging from new service and management approaches in the Public
Service; and leadership and people management in this time of great change.
My Bill addresses the need to
provide for a framework to deal with the matter of whistle-blowing within this
new context of ethics and values as a strong foundation of our Canadian Public
As indicated in the Tait report,
an ethics regime is not a single initiative but rather a comprehensive series
of initiatives, mutually supporting and complementing one another.
One element of an ethics regime which has
particular importance is the establishment within public service organizations
of suitable recourse mechanisms, counsellors, or ombudsmen for public servants
who may feel that they or others are in potential conflicts of interest or other
ethical difficulties, or may feel that they are under pressure or have been
asked to perform actions that are unethical or contrary to public service
values and to the public interest. One refrain that we have heard from public
servants is that there is no point in asking them to uphold public service
values or to maintain high ethical standards in public service, if we do not
give them the tools to do so. One of the essential tools they require is an
accessible person to whom they can turn, in confidence, to seek advice and
guidance, to express concern about instructions given, or to report a serious
breach of public service ethics. Such a function must have sufficient
seniority, independence and authority to carry out the duties effectively and
to protect the identity and positions of those who have recourse to it. There
must be means, consistent with public service values, for public servants to
express concern about actions that are potentially illegal, unethical or
inconsistent with public service values, and to have those concerns acted upon
in a fair and impartial manner.1
My Bill is built on a framework
of four pillars. The first protects the public interest in general; the second
enriches the Public Service as a first-class institution; the third provides
for accountability and solutions at the unit level; and the fourth protects the
public servant. Thus, we have provided in clause 2 of Bill S-13 what I call the
triple “P” approach. The first of the three “Ps” is for promotion. Clause 2(a)
provides that we wish to place a focus on education, and that persons working
in the public service workplace will have the opportunity to be exposed to a
reflection on ethics and values in the Public Service.
The second “P” is for process.
Clause 2(b) provides for protection of the public interest by providing a means
for employees of the Public Service to make allegations of wrongful acts or
omissions in the workplace, and to make those allegations in confidence to an
independent Public Interest Commissioner, one of the three commissioners of the
Public Service Commission. It will then be on the shoulders of that
commissioner, in the public interest, to investigate the allegations and to
have the situation dealt with. The Public Service Commission makes an annual
report to Parliament on its activities. The Bill provides for a section of the
annual report of the Public Service Commission to focus on the work done
pursuant to this legislation.
Finally, the third “P” is for
protection. Clause 2(c) indicates that the purpose of the Bill is to protect
employees of the Public Service from retaliation for having made or for
proposing to make, in good faith, allegations of wrongdoing and submitting
these allegations to the Public Interest Commissioner.
The rest of the framework of the
Bill is also straightforward and clear. The education function of the
Commissioner is contained in clause 8, which states:
The Commissioner shall promote ethical practices
in the Public Service workplace and a positive environment for giving notice of
wrongdoing, by disseminating knowledge of this Act and information about its
purposes and processes and by such other means as seem fit to the Commissioner.
This should help members of the
Public Service of Canada at all levels to concentrate on ethical practices
resulting in a more harmonious, effective and focused workplace.
Clauses 9 to 17 of the Bill set
out the mechanisms under which a complaint of wrongdoing is to be made and
investigated. A complaint is first filed with the Public Interest Commissioner.
The Bill makes it clear that a complaint made in good faith and on the basis of
reasonable belief is not a breach of any oath of office or any duty that the
given public servant may have taken. The Commissioner, under clause 13, may
accept the complaint under certain circumstances and cause an investigation of
the complaint, if the investigation meets certain criteria, and prepare a
written report of findings and recommendations. This report is then sent to the
Minister responsible for the employee against whom the complaint was made,
whereby responsibility at the departmental or agency level is maintained and
undertaken. The Minister must then take action and inform the Commissioner of
the nature of such action, or the Minister may advise that no action was taken.
Under certain circumstances, such as cases of emergency, the Commissioner may
require the President of the Treasury Board to table in Parliament an emergency
report prepared by the Commissioner if he or she believes that it is in the
public interest to table such a report. The Public Service Commission’s annual
report to Parliament will be required to contain details of activity under the
Clauses 18 to 22 of the Bill
provide protection for the whistle-blowing employee against adverse action
being taken because of the whistle-blowing activity. The employee has both the
remedies available under this Bill and all existing remedies provided in both
the civil courts and in any grievance procedures. The Bill would not diminish
or detract from any of those pre-existing mechanisms.
The potential for illegal or
improper activity within the machinery of government is a reality which cannot
be ignored if the public interest is to be protected. It is a reality
with which other jurisdictions have attempted to deal, and in which successive
governments at the federal level have indicated an interest.
Appropriate and balanced
whistle-blowing legislation forms a key part of any response to this important
issue. Public Service employees must have available to them a clear and
well-publicized means of reporting any wrongdoing which they observe.
They must be assured of protection in the event that they choose to do
so. At the same time, it is necessary to promote ethical practices within
the Public Service to ensure their assessments of activities are informed ones.
This Bill fulfils the
requirements of establishing a whistle-blowing process, ensuring employee
protection and promoting education, by proposing a model in which one of the
Public Service Commission of Canada commissioners would be designated as a
Public Interest Commissioner. The carriage of any case of wrongdoing
alleged by an individual public servant would be placed on the shoulders of the
Public Interest Commissioner. Cases which are found to be frivolous or
vexatious would be dismissed in the first instance, thus guarding against any
waste of time and resources by the Commissioner or by the department or agency
Bona fide cases would be investigated, and the
Commissioner would deal with the department to which the allegation relates.
The department would be invited to conduct itself in such a way as to
deal with issues of wrongdoing. This reflects the importance of
departments and agencies operating and managing on the basis of ethics and
values which are the foundation of the Public Service, while at the same time
keeping the complaint within the department.
Therefore, this is not a
top-down model. Rather, it endeavours to keep the accountability and the
responsibility at the operating level. However, should the Public
Interest Commissioner, when dealing with a case of wrongdoing, fail to receive
a satisfactory response from the agency or department involved, he or she could
approach the Minister responsible to have the problem rectified. If no
resolution is obtained, the Commissioner would submit a report directly to
In accordance with Canada’s
Westminster model of government, Parliament would hold the Minister in question
accountable. Ultimately, through Parliament, it is Canadians themselves
who would ensure accountability, in order to safeguard their interests against
possible wrongdoing in the Public Service of Canada.
1. A Strong
Foundation: Report of the Task Force on Public Service Values and Ethics,
Canadian Centre for Management Development, Ottawa, 2000, pp. 43-44.