- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: -It is legally required to be impartial and independent under the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ] -- and under the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- It is legally required to be fairly managed under the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Legal requirements prohibiting nepotism, cronyism and patronage exist under sections 30 to 46 in Part 1, and sections 66 to 68 in Part 5, of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ] -- under sections 206 to 237 in Part 2 (Grievances) of the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, appointments of Deputy Ministers, Assistant Deputy Ministers and other senior civil servants are under the control of politicians (the Prime Minister and Cabinet, known legally as the "Governor in Council") under section 127.1 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- and as a result nepotism, cronyism and patronage are effectively legal

- as well, subsection 30(4) of the Public Service Employment Act (PSEA -- 2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- allows the Public Service Commission to consider only one person for an appointment in order for the appointment to be considered to have been made on the basis of merit; under subsection 33 of the PSEA the Public Service Commission is not required to use an advertised appointment process for every appointmen; under subsection 36 of the PSEA, the Public Service Commission is not required to use a specific, well-established, effective assessment process for every appointment, and; section 38 of the PSEA allows the Public Service Commission to avoid merit requirements for many appointments (non-merit based appointments should only be allowed under the conditions set out in section 40, subsections 41(1) and (4), of the PSEA).

- In addition, under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- the Public Service Commission (which is responsible for conducting hirings and overseeing the hiring process within government institutions) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest because it audits and investigates its own operations.

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Cases of nepotism, cronyism, patronage and other civil service management problems can be complained about under the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ] -- under the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, appointments of Deputy Ministers, Assistant Deputy Ministers and other senior civil servants are under the control of politicians (the Prime Minister and Cabinet, known legally as the "Governor in Council") under section 127.1 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- and as a result nepotism, cronyism and patronage are effectively legal.

- as well, subsection 30(4) of the Public Service Employment Act (PSEA -- 2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- allows the Public Service Commission to consider only one person for an appointment in order for the appointment to be considered to have been made on the basis of merit; under subsection 33 of the PSEA the Public Service Commission is not required to use an advertised appointment process for every appointmen; under subsection 36 of the PSEA, the Public Service Commission is not required to use a specific, well-established, effective assessment process for every appointment, and; section 38 of the PSEA allows the Public Service Commission to avoid merit requirements for many appointments (non-merit based appointments should only be allowed under the conditions set out in section 40, subsections 41(1) and (4), of the PSEA).

- In addition, under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- the Public Service Commission (which is responsible for conducting hirings and overseeing the hiring process within government institutions) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest because it audits and investigates its own operations.

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

References: - Criminal Code (R.S., 1985, c. C-46) -- [ LINK ]" target="_blank">[ LINK ] -- Part IV, sections 118 to 125 are the anti-corruption sections (for example, under subsection 121 (3) "Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years." and other listed sections of the Criminal Code have a similar-length prison term as the penalty)

- Section 80 (contained in Part IX) of the Financial Administration Act (R.S.C. 1985, c. F-11) -- [ LINK ] -- has penalty on conviction of "a fine not exceeding five thousand dollars and to imprisonment for a term not exceeding five years" and section 81 has penalty of "a fine not exceeding three times the amount so offered or accepted [as a bribe] and to imprisonment for any term not exceeding five years".

- and subsection 750(3) (in the "Disabilities" portion of Part XXIII) of the Criminal Code -- http://lois.justice.gc.ca/en/showtdm/cs/C-46 -- prohibits anyone convicted of violating sections 121 or 124 or 418 (selling faulty goods to the government) of the Criminal Code, or parts of section 80 of the Financial Administration Act, or section 154.01 (which applies to frauds within Crown corporations (corporations owned and operated by the federal government) of the Financial Administration Act, from contracting, receiving any benefit from a contract, or holding office/employment with the federal government.

- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Legal requirements prohibiting political interference exist under sections 30 to 46 in Part 1, and sections 66 to 68 in Part 5, of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ] -- under sections 206 to 237 in Part 2 (Grievances) of the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, Deputy Ministers, Assistant Deputy Ministers and other senior civil servants are appointed by politicians (the Prime Minister and Cabinet, known legally as the "Governor in Council") under section 127.1 of the Public Service Employment Act (2003, c. 22, ss. 12, 13), and the appointment process does not involve any professional criteria, and the politicians can decide to move them to another department/ministry at any time for any reason -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 As a result, political interference with the civil/public service is effectively legal

- The Gomery Commission Inquiry into the so-called "Adscam sponsorship scandal" recommended in its second report that at least Deputy Ministers be selected on the basis of merit through an open, publicly advertised nomination process and that they be given a fixed term in office (3-4 years) so that they will be loyal to the law and the public interest, not loyal to the Minister. See following news article summarizing the recommendations of the Gomery Commission Inquiry: [ LINK ]

- An elite group of 65 Canadians argued in an open letter against these recommendations (arguing the Ministers must be able to trust Deputy Ministers (confusing the definition of "trustworthy" with the definition of "blindly loyal"), and the recommendations have not been implemented.

See news article about the letter at: [ LINK ] and see the letter from the group of 65 Canadians at: [ LINK ]

- The 2005-2006 Fiscal Year annual report (the most recent available annual report) of the federal Public Service Commission -- [ LINK ] -- in subsection 1.7 sets out the following 3 areas of concern relating to nepotism, cronyism and patronage: visible minorities and other "employment equity groups" continue to be underrepresented in the civil service; individuals continue to move between the civil service and politicians' offices without any break in-between the two positions, and; the Prime Minister and Cabinet (known legally as the Governor in Council) has the power to appoint too many senior government officials without any merit-based requirements -- [ LINK ]

- A February 2007 "Initial Scoping Report" by the federal Public Service Commission set out concerns about the independence of the civil service and stated that an audit is being undertaken -- [ LINK ]

- By the current Prime Minister's own admission, federal civil servants were not protected from political interference in March 2006 (See text of speech at: [ LINK ] ) and, given that the current Prime Minister has not implemented all of the promised changes he mentioned in his March 2006 speech (for example, the Public Appointments Commission has not been established, and not all civil servants are protected from retaliation if they "blow the whistle" on government wrongdoing and the whistleblower protection system has several other significant flaws), by his own admission federal civil servants are still not, in practice, effectively protected from political interference.

- According the Gomery Commission of Inquiry report into the so-called "Adscam sponsorship scandal", political interference in government contracting was one of the causes of the scandal -- See summary of the first, fact-finding report of the Commission at: [ LINK ](E)%20Jan%2020%202006.pdf

- In addition, under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- the Public Service Commission (which is responsible for conducting hirings and appointments and overseeing the hiring/appointment process within government institutions (including ensuring there is no political interference in hirings) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest (and, as a result, is not as effective as possible as an enforcement body) because it audits and investigates its own operations.

- See also for background about concerns about political interference with the civil service the March 2003 Public Service Alliance of Canada's (PSAC, the largest federal civil/public service union) submission on Bill C-25, which amended in many ways the Public Service Employment Act (PSEA) -- [ LINK ]

- See also for background the November 2003 report "Profile of Deputy Ministers in the Government of Canada" -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

Peer Review Comments: A lower score should be given here because civil servants are more commonly influenced by political or personal matters than typically independent.

Here are two recent cases:

Testimony at the Gomery inquiry into the federal sponsorship scandal revealed an overlap between the administrative branch and the political wing of the public works department in their handling of the fund. Although former public works minister Alfonso Gagliano denied being directly involved in awarding contracts, saying the department's top civil servant, Charles Guité, managed the program, Justice Gomery concluded there was direct political interference in granting government contracts.

In a different case, the general manager of a Montreal borough testified during his corruption trial in 2006 that city contracts could not be awarded without elected officials' approval. In other words, civil servants are not free from political interference, even at the municipal level. Robert Fortin was convicted of receiving kickbacks (a CAN$28,600 garden tractor and CAN$1,100 worth of free gardening work) from two private companies with city contracts. He had also entertained a close friendship with the owner of one of the companies.

In addition, critics believed Fortin received favorable treatment from the council as he continued being paid CAN$2,000 a week despite his arrest in connection with the abuse-of-power allegations. His salary was stopped six months later following a public outcry.

- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer;

- the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Legal requirements prohibiting political interference exist under sections 30 to 46 in Part 1, and sections 66 to 68 in Part 5, of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ] -- under sections 206 to 237 in Part 2 (Grievances) of the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, Deputy Ministers, Assistant Deputy Ministers and other senior civil servants are appointed by politicians (the Prime Minister and Cabinet, known legally as the "Governor in Council") under section 127.1 of the Public Service Employment Act (2003, c. 22, ss. 12, 13), and the appointment process does not involve any professional criteria, and the politicians can decide to move them to another department/ministry at any time for any reason -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 As a result, political interference with the civil/public service is effectively legal

- The Gomery Commission Inquiry into the so-called "Adscam sponsorship scandal" recommended in its second report that at least Deputy Ministers be selected on the basis of merit through an open, publicly advertised nomination process and that they be given a fixed term in office (3-4 years) so that they will be loyal to the law and the public interest, not loyal to the Minister. See following news article summarizing the recommendations of the Gomery Commission Inquiry: [ LINK ]

- An elite group of 65 Canadians argued in an open letter against these recommendations (arguing the Ministers must be able to trust Deputy Ministers (confusing the definition of "trustworthy" with the definition of "blindly loyal"), and the recommendations have not been implemented.

See news article about the letter at: [ LINK ] and see the letter from the group of 65 Canadians at: [ LINK ]

- The 2005-2006 Fiscal Year annual report (the most recent available annual report) of the federal Public Service Commission -- [ LINK ] -- in subsection 1.7 sets out the following 3 areas of concern relating to nepotism, cronyism and patronage: visible minorities and other "employment equity groups" continue to be underrepresented in the civil service; individuals continue to move between the civil service and politicians' offices without any break in-between the two positions, and; the Prime Minister and Cabinet (known legally as the Governor in Council) has the power to appoint too many senior government officials without any merit-based requirements -- [ LINK ]

- A February 2007 "Initial Scoping Report" by the federal Public Service Commission set out concerns about the independence of the civil service and stated that an audit is being undertaken -- [ LINK ]

- By the current Prime Minister's own admission, federal civil servants were not protected from political interference in March 2006 (See text of speech at: [ LINK ] ) and, given that the current Prime Minister has not implemented all of the promised changes he mentioned in his March 2006 speech (for example, the Public Appointments Commission has not been established, and not all civil servants are protected from retaliation if they "blow the whistle" on government wrongdoing and the whistleblower protection system has several other significant flaws), by his own admission federal civil servants are still not, in practice, effectively protected from political interference.

- According the Gomery Commission of Inquiry report into the so-called "Adscam sponsorship scandal", political interference in government contracting was one of the causes of the scandal -- See summary of the first, fact-finding report of the Commission at: [ LINK ](E)%20Jan%2020%202006.pdf

- In addition, under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- the Public Service Commission (which is responsible for conducting hirings and appointments and overseeing the hiring/appointment process within government institutions (including ensuring there is no political interference in hirings) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest (and, as a result, is not as effective as possible as an enforcement body) because it audits and investigates its own operations.

- See also for background about concerns about political interference with the civil service the March 2003 Public Service Alliance of Canada's (PSAC, the largest federal civil/public service union) submission on Bill C-25, which amended in many ways the Public Service Employment Act (PSEA) -- [ LINK ]

- See also for background the November 2003 report "Profile of Deputy Ministers in the Government of Canada" -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- Re: whistleblower protection - Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Public Sector Integrity Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers) -- See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- the Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint); - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration). The Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000- US$2600), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,525) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,050) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment). Wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Legal requirements prohibiting political interference exist under sections 30 to 46 in Part 1, and sections 66 to 68 in Part 5, of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ] -- under sections 206 to 237 in Part 2 (Grievances) of the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, Deputy Ministers, Assistant Deputy Ministers and other senior civil servants are appointed by politicians (the Prime Minister and Cabinet, known legally as the "Governor in Council") under section 127.1 of the Public Service Employment Act (2003, c. 22, ss. 12, 13), and the appointment process does not involve any professional criteria, and the politicians can decide to move them to another department/ministry at any time for any reason -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 As a result, political interference with the civil/public service is effectively legal

- The Gomery Commission Inquiry into the so-called "Adscam sponsorship scandal" recommended in its second report that at least Deputy Ministers be selected on the basis of merit through an open, publicly advertised nomination process and that they be given a fixed term in office (3-4 years) so that they will be loyal to the law and the public interest, not loyal to the Minister. See following news article summarizing the recommendations of the Gomery Commission Inquiry: [ LINK ]

- An elite group of 65 Canadians argued in an open letter against these recommendations (arguing the Ministers must be able to trust Deputy Ministers (confusing the definition of "trustworthy" with the definition of "blindly loyal"), and the recommendations have not been implemented.

See news article about the letter at: [ LINK ] and see the letter from the group of 65 Canadians at: [ LINK ]

- The 2005-2006 Fiscal Year annual report (the most recent available annual report) of the federal Public Service Commission -- [ LINK ] -- in subsection 1.7 sets out the following 3 areas of concern relating to nepotism, cronyism and patronage: visible minorities and other "employment equity groups" continue to be underrepresented in the civil service; individuals continue to move between the civil service and politicians' offices without any break in-between the two positions, and; the Prime Minister and Cabinet (known legally as the Governor in Council) has the power to appoint too many senior government officials without any merit-based requirements -- [ LINK ]

- A February 2007 "Initial Scoping Report" by the federal Public Service Commission set out concerns about the independence of the civil service and stated that an audit is being undertaken -- [ LINK ]

- By the current Prime Minister's own admission, federal civil servants were not protected from political interference in March 2006 (See text of speech at: [ LINK ] ) and, given that the current Prime Minister has not implemented all of the promised changes he mentioned in his March 2006 speech (for example, the Public Appointments Commission has not been established, and not all civil servants are protected from retaliation if they "blow the whistle" on government wrongdoing and the whistleblower protection system has several other significant flaws), by his own admission federal civil servants are still not, in practice, effectively protected from political interference.

- According the Gomery Commission of Inquiry report into the so-called "Adscam sponsorship scandal", political interference in government contracting was one of the causes of the scandal -- See summary of the first, fact-finding report of the Commission at: [ LINK ](E)%20Jan%2020%202006.pdf

- In addition, under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- http://lois.justice.gc.ca/en/showtdm/cs/P-33.01 -- the Public Service Commission (which is responsible for conducting hirings and appointments and overseeing the hiring/appointment process within government institutions (including ensuring there is no political interference in hirings) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest (and, as a result, is not as effective as possible as an enforcement body) because it audits and investigates its own operations.

- See also for background about concerns about political interference with the civil service the March 2003 Public Service Alliance of Canada's (PSAC, the largest federal civil/public service union) submission on Bill C-25, which amended in many ways the Public Service Employment Act (PSEA) -- [ LINK ]

- See also for background the November 2003 report "Profile of Deputy Ministers in the Government of Canada" -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

Peer Review Comments: As the author says, few appointments are made on the basis of professional qualifications, and political interference is "effectively legal."

References: - An Internet search did not result in any recent annual reports of the federal Public Service Commission or public sector unions highlighting lack of clear job descriptions as a systemic problem.

- However, an audit published in May 2007 of the Department of Foreign Affairs and International Trade conducted by the Auditor General of Canada found that the Department did not have a clear sense of its staffing and competencies, nor did it have a strategic plan (including job descriptions) for its staffing needs for the future -- [ LINK ]

- A similar audit published in May 2007 of the federal Department of Justice by the Auditor General of Canada found problems with job descriptions for legal counsel (specifically tracking of time spent on cases) -- [ LINK ]

References: - According to the rates of pay information on the following Government of Canada Web site, bonuses apply only to executives (ie. managers) within the federal public service and 3-5 percent of annual pay and are only earned if "at-risk" pay is earned by fulfilling specific performance goals (7 to 10 percent of pay is "at-risk" pay) -- [ LINK ]

See also [ LINK ]

References: - While the government does not regularly publish a list of authorized civil service positions, the federal government agency Statistics Canada does do regular analyses. See most recent at: [ LINK ]

Civil service positions that are not filled can be found at: [ LINK ]

Peer Review Comments: Although such documents are not widely accessible to the public, the information in them is provided to civil servants working in related areas or departments.

References: - Under sections 17-19 and 66 to 73 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ] -- the Public Service Commission (which is responsible for conducting hirings and overseeing the hiring process within government institutions) also has the power to do audits and investigations of the Commission itself, and public service appointments and other public service hiring operations generally, and is therefore in a conflict of interest because it audits and investigates its own operations

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Public Sector Integrity Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers). See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint) - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration) -- the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000 - US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000 -US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - An Internet search found no references to problems with timely payment of federal civil/public servants between July 2006 and June 2007.

- However, an ongoing court case by several federal civil/public service raises an important pay issue concerning pensions and a surplus in the public sector pension fund, and how this case is resolved will determine whether federal civil/public servants have been properly paid for the past couple of decades. See [ LINK ]

Peer Review Comments:

References: - Within the Canada Public Service Agency -- [ LINK ] -- there is an Office of Public Service Values and Ethics -- [ LINK ] -- and many resources available in the category of Human Resources and Accountability -- [ LINK ] --

- The Public Service Commission -- [ LINK ] -- has a Human Resources Toolbox -- [ LINK ]

Despite all this, there seems to be no formal list of civil/public servants convicted of corruption to ensure that neither contracts nor employment are offered or given to those who have been convicted.

References: - Legal requirements to prevent nepotism, cronyism, patronage and conflicts of interest under the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ] -- under the Public Service Labour Relations Act (2003, c. 22, s. 2) -- [ LINK ] -- and under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

References: - Legal requirements with regard to civil servants entering the private sector after leaving government (one year cooling-off period with some exemptions and limitations) under Chapter 3 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

References: - Treasury Board of Canada "Hospitality Policy" -- [ LINK ]

- Legal requirements with regard to gifts and hospitality under Chapter 2 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- also paragraph 121(1)(c) (contained in Part IV) of the Criminal Code (R.S., 1985, c. C-46) -- [ LINK ]

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

References: - Legal requirements with regard to civil servants entering the private sector after leaving government (one year cooling-off period with some exemptions and limitations) under Chapter 3 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, the Values and Ethics Code is enforced only by the senior civil/public servants, who have no clear mandate, powers, resources (or incentive) to ensure that the post-employment restrictions are being complied with by people who leave the civil/public service (they only have power over people still employed by the civil/public service

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Public Sector Integrity Commissioner position was created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers). See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers - as a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint) - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration) -- the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000-US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000-US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Treasury Board of Canada "Hospitality Policy" -- [ LINK ]

- Legal requirements with regard to civil servants entering the private sector after leaving government (one year cooling-off period with some exemptions and limitations) under Chapter 3 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, the Values and Ethics Code is enforced only by the senior civil/public servants, who have no clear mandate, powers, resources (or incentive) to ensure that the post-employment restrictions are being complied with by people who leave the civil/public service (they only have power over people still employed by the civil/public service

- Whistleblower protection under Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Public Sector Integrity Commissioner position was created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers). See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers - as a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint) - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration) -- the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000-US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000-US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

References: - Legal requirements with regard to civil servants entering the private sector after leaving government (one year cooling-off period with some exemptions and limitations) under Chapter 3 of the 2003 Values and Ethics Code for the Public Service -- [ LINK ]

- However, the Values and Ethics Code is enforced only by the senior civil/public servants, who have no clear mandate, powers, resources (or incentive) to ensure that the post-employment restrictions are being complied with by people who leave the civil/public service (they only have power over people still employed by the civil/public service

- Whistleblower protection under Public Servants Disc