‘Ottawa’ Court Upholds Integrity Commissioner’s Probe of RCMP Whistleblower Disclosure
In a judgment that should strengthen the federal government’s whistle-blowing regime, the Federal Court has rejected an RCMP argument that the Public Sector Integrity Commissioner had no jurisdiction to investigate wrongdoing involving the Ottawa Air Section of the force’s Air Services Branch.
In December, 2014, then-integrity commissioner Mario Dion tabled a report in Parliament that concluded RCMP pilots based in Ottawa repeatedly flew aircraft carrying too many passengers and too much luggage. He also found that pilots had made false entries in their logbooks to conceal the overweight flights.
At the time, the RCMP asked the Federal Court for an injunction blocking the release of the report pending the outcome of a judicial review of the commissioner’s jurisdiction to investigate an RCMP whistleblower’s 2013 disclosure of eight potential wrongdoings. But the court refused.
In a new judgment, the Federal Court has finally released its decision on the judicial review. Justice E. Susan Elliott sided firmly with the integrity commissioner, saying his interpretation of the 2007 legislation that created his office was reasonable.
Joe Friday, the current integrity commissioner, hailed the decision as “another step toward certainty in implementing and understanding the federal whistle-blowing regime — for us, for federal organizations and also for people coming forward with disclosures.
“I would certainly hope that any potential whistleblower reading this decision would feel greater confidence in our ability to do our job in pursuing disclosures,” Friday said, noting that it was the first time the courts had interpreted the relevant section of the Public Servants Disclosure Protection Act.
The jurisdictional argument focused on a section of the act that restricts the commissioner’s ability to deal with a disclosure if “a person or body acting under another Act of Parliament” is dealing with the same subject matter.
The RCMP argued that the commissioner had no authority to investigate because Transport Canada was already looking into the issue under the Aeronautics Act. It sought an order quashing or setting aside the commissioner’s decision in the case.
But the commissioner argued that the restriction in the act should be read narrowly in light of its important goal of maintaining public confidence in the integrity of public servants and its requirement that a finding of wrongdoing must be reported to Parliament.
If the RCMP’s interpretation were correct, the commissioner argued, any federal department could pre-empt the accountability provisions of the act by conducting a general, non-binding review.
Elliott was clearly persuaded by the commissioner’s arguments. She found that the parts of the act that limit his jurisdiction “cannot be interpreted so broadly as to frustrate the scheme and purpose of the legislation.”
The act, Elliott pointed out, “addresses wrongs of an order of magnitude that could shake public confidence if not reported and corrected,” and if proven, involve “a serious threat to the integrity of the public service.”
The focus of the act’s disclosure provision, she wrote, is to uncover past wrongs, bring them to light in public and put in place corrections to prevent recurrence. By contrast, the focus of Transport Canada’s review was to find gaps in existing procedures and advise the RCMP on future regulations.
“The context and purpose of the activities of (Transport Canada) was entirely different than that of the commissioner’s analysis and investigation,” Elliott wrote.
The commissioner’s view that the public interest “required a final determination of whether the RCMP had committed wrongdoings, given the nature of the allegations, was reasonable,” she concluded.
Friday said he was “extremely pleased to have the Federal Court agree with our interpretation of our act and affirm our position with respect to the manner in which we carry out our mandate.”