OGGO Committee Meeting

     I call this meeting to order.

    Welcome, everyone, to meeting number 63 of the House of Commons Standing Committee on Government Operations and Estimates.

    Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, the committee is meeting on the study of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

    Colleagues, one of our witnesses for today, unfortunately, was tied up by their airline and will not be able to make it. That's Mr. Devine, so we have two witnesses today.

     Ms. Gualtieri, welcome back. It's fantastic to see you.

     Thank you.

     I understand you have a five-minute opening statement for us.

    Am I opening?

    Yes.

     Please go ahead.

    Sure.

    Mr. Chair and members, this is a privilege, and thank you to members Garon and Vignola.

    In 2004 I provided the first of many testimonies on the tenets of effective whistle-blowing legislation, but rather than protect truth-tellers, the government imposed oppressive anti-free speech regimes. Today we must, therefore, confront Canada's dehumanizing treatment of whistle-blowers, who, as eye witnesses to the birthplace of scandals, are indispensable to bridge the secrecy gap.

    Former prime ministers Chrétien, Martin and Harper all affirmed that, in their governments, whistle-blowers would be safe. A bright light was in 2006, when Pierre Poilievre stated, “The plan is to protect all whistle-blowers regardless of the approach they take to expose the corruption,” but with Justin Trudeau now positioned as the global champion for openness, public servants remain muzzled, seemingly powerless against the hypocrisy.

    Thirty-one years ago I joined Global Affairs. My job was to accountably manage billions of dollars of diplomatic housing. Almost immediately, I faced an indulged diplomatic class who, in violating rules, wasted billions on excessively luxurious and palatial accommodations. My duty to hard-working taxpayers prevented my acquiescence. By 1995, with a deep recession engulfing Canada, 33% of urban children lived in poverty, rising to 50% in Montreal. This gross waste was not only unlawful; it was evil.

    For six years I worked internally, believing that change would come. It didn't. Instead, the department unleashed a campaign of retribution. It started subtle but became brazen: I was ordered silent at meetings, struck from memos and deprived of essential work tools. I was, as one colleague said, rendered irrelevant. My job was sabotaged, putting my title and salary at risk. Then one day, I was simply stripped of my job in a degrading public statement. Maintenance took my door plaque, computer and phone, and the department expunged me from the directory. Whether a lie, lack of courage or something else, the ADM's betrayal of the promise to get back to me following our meeting left me hanging, subject to more stealth abuse for going up the hierarchy.

    The deputy minister stonewalled, and after sending evidence of the unchecked profligacy to the minister Lloyd Axworthy, I was threatened with liable for suggesting any wrongdoing. On my final day, I was invisible and alone, and my director advised that the problem was that I cared too much about doing my job right. The final ignominy was an anonymous call tracked to a phone booth, menacingly warning me to back down or the department would publicize who I was sleeping with. One month later, June 10, 1998, I sued.

    Reeling from six years of abuse, weary from constant vigilance, I now faced a justice department that financed 13 years of warfare, using taxpayer money, hell-bent on bankrupting and destroying me. Shamed by nothing, in 2000 the government demanded I pay $360,000 for just one motion. In 2003, they hauled me back into court, claiming I was stalling, because I needed a brief reprieve to breastfeed my newborn.

    Now 62 years old....

    A voice: You can do it.

    Ms. Joanna Gualtieri: Thank you.

    I have learned sobering truths. Despite winning, decades of being in a subterfuge of corruption, lies and cover-up leaves lasting wounds, but the deepest cut is loss: loss of time, hope, vocation, community, and most of all, the loss of my little brother who, with special needs, counted on me. Engaged in a war against a formidable government, I couldn't be there when he needed me most, and he died alone.

    A year later I went through the same debilitating regret when mom died. We never got to sign up for the sewing classes. I kept deferring. I am so sorry.

    Today my husband Serge is here with our sons Zacharie and Sebastien. In the depth of despair, we found grace with their arrival. For their generation, we must find courage and place dignity to people over deference to power. We must pass Bill C-290, establishing this moment as a new beginning in restoring trust not only in our public service but also in Canada's vision for decency and justice.

     Martin Luther King said, “the arc of the moral universe is long, but it bends towards justice.” Today, pass Bill C-290 and be the force that bends this arc.

    Thank you very much. I apologize.

    No, that was great. Thank you very much, we appreciate it.

    Ms. Dion, you have an opening statement for five minutes, please.

    I want to begin by thanking the committee for listening to our stories. It's important.

    My name is Julie Dion. I'm 55 years old, and I worked for the federal government from 2000 to 2015. I defended whistle-blower Luc Sabourin.

    I was recruited in February 2008 by the senior analyst in the records section, the very person who was the unit's tormentor.

    During my initial interview with the director, she asked me if I was comfortable working in a unit where there were interpersonal problems. I told her that I could do it without any problem, since I was trained as a referral agent to provide support in the employee assistance program. So the director knew there were problems in that unit.

    I started in this unit as a team leader where I was responsible for about 15 employees. It was during that year that several employees, including Mr. Sabourin, approached me to complain about harassment, injustice and intimidation within the team. During the 18 months of that mandate, I witnessed reprehensible behaviour that was so serious that I lost my sleep.

    As per the current complaint protocol, I forwarded the information to my immediate director. This director had to leave the unit within six months because she herself had become the target of the disruptive agent. At that time, the person responsible for the employee assistance program offered me conflict management training. I approached my director to see if I could attend, and she said I could attend, but I couldn't do anything for our unit.

    During this training, I learned that I had to go one level above my director, since she, herself, was involved. The senior person responsible was the vice-president of the Canada Border Services Agency. The complainants and I went to meet with her. The situation went downhill after that. The verbal barbs from my director and the disruptive officer made it clear to me that these two individuals were aware of the complaints and the steps we had taken.

    During my short tenure with the unit, I saw at least 25 people come and go because of this situation.

    The anguish and nightmares caused by defamatory comments and abusive, aggressive and reprehensible actions were ruining my life. Faced with this chaos and my powerlessness, I asked for a sabbatical year to fulfill a mandate of the Canadian International Development Agency in Haiti. It was a nine-month contract.

    I asked my director for help on several occasions to support the training that I sometimes gave to the records unit, which she refused, not surprisingly.

    Following the earthquake in Haiti in 2010, the Haitian minister asked me to stay to help manage the state of emergency. I asked my new director for an extension of my mandate to allow me to stay in Haiti, which she refused. She then asked me to return to Canada. In light of this refusal, the Haitian minister asked the Canadian ambassador to intervene with the director to release me. The Canadian ambassador's request was also denied.

    An email from CBSA's vice-president of Operations notified me that I was being fired. I found myself without a government job after 11 years of loyal service and literally risking my life to promote the values and security of my country, all because I dared to speak out, because I dared to support a whistle-blower.

    In 2013, I was contacted again following an investigation, which Mr. Sabourin talked about in his testimony, to be reinstated in my position, because it had been discovered that I had been wrongfully terminated. In 2014, I was reinstated to a position below mine, in a unit in Sherbrooke that was far from my area of expertise.

    I would find out later, through an access to information request, that an order for radio silence had been issued to me by management. That was the death knell of my career; I'm still being targeted.

    In 2015, I couldn't take it anymore. Suffering from post-traumatic stress related to this situation, I went on sick leave. I've never been able to return to work.

    Being a whistle-blower in the current system is the equivalent of professional suicide. It's David versus Goliath. As a witness to what was going on with Mr. Sabourin, I was also targeted and not protected. If the amendments proposed in Bill C‑290 had been in force, I would have been protected.

    I ask the members of the committee and all Canadians to hear my case.

    The lack of real protection kills. Wrongdoing, even criminal acts, takes place within the government, and no one says anything because of the lack of protection and the violence of reprisals. All of this breaks whistle-blowers. It can even drive them to suicide; believe me, it's not as rare as we think. Things must change, and Bill C‑290 is part of that change.

    Remember that the work you do in Parliament has the potential to save lives. Please stand on the right side.

    Thank you.

     Thank you very much, Ms. Dion.

    Mrs. Kusie, you have six minutes, please.

    Thank you very much, Mr. Chair.

    I'd like to thank the witnesses for being here today.

    Ms. Dion, I worked for the Department of Foreign Affairs for 15 years. I was posted to El Salvador, Argentina and, lastly, Dallas, Texas. I remember the 2010 earthquake in Haiti. I was involved in the aid effort at that time.

    Thank you both for your service to our country. I think most Canadians don't recognize the service of people who work for the Department of Foreign Affairs, Trade and Development or who have worked for CIDA.

    Madam Gualtieri, I'm just looking at this beautiful picture of you as a younger woman. I was once a younger woman myself. You just wonder how you've changed from then until now. I can't imagine the difference between who this person was, so bright and optimistic, looking outward to the world. After what you've been through, most certainly....

    Not to excuse the actions of any government, but I will say that at the time when I was consul for Dallas the foreign minister took some very strong decisions to sell our official residence in Dallas—which had an impact on me—as well as properties in Rome, for example. Certainly I know the injustice that you have faced. It is injustice, but there were those who heard your concerns as outlined within the article in terms of the expectations of Canadians serving abroad. Thank you for that.

    Now, I will finally get to the questioning, Madam Gualtieri.

    How do you think BillC-290 will impact public servants going forward into the future? What positive aspect is there that could have helped you, were it in place?

    Thank you for that question and for your interest.

    I have been involved in this movement for a long time. I am a lawyer as well. I have to say that my initial involvement was very committed to the law. Partly that was my training and I also saw that it was necessary to regulate behaviour through changing the laws. As I've progressed, I've realized—I'm going to read you something by an academic—that the law is really just one part. It has to be there, but we know through any social movement—I always look at the civil rights movement—laws were changed. However, it took decades, years and a lot of sacrifice. There were a lot of deaths and a lot of marches. The culture changed through an amassing of people.

    It is essential to pass Bill C-290. To turn it back will send a very grave message to not only the public service but to the people of Canada that they are not important and the truth does not matter, and it's a very cynical manoeuvre. I take it as a given that people will collaborate to pass C-290.

    Will it be a panacea? No, it will not. Probably one of the most critical issues is how somebody is supposed to mount a case without legal representation. That is a very big part that we're going to have to discuss how to do.

    I want to read you something by an academic. I'll send it to the clerk. This is an article by Brian Martin, who's an Australian academic. He said this:

    The law is essential. Is it enough? No. We need a major cultural, socio-political shift in embracing whistle-blowing.

     Thank you for that. I also want to take this moment to thank your family as well for supporting you, because no one achieves anything without their family. I want to recognize that.

    Ms. Dion, I'd like to ask your opinion on the importance of passing the bill before us today.

    Protecting whistle-blowers and people who witness wrongdoing and support whistle-blowers in their efforts is crucial. People have lost their lives, their careers, their homes, their relationships. We need a much broader and more detailed framework than what we have now. It would save lives.

    Absolutely.

    Thank you very much.

    I thought I had 10 seconds, but all right. Thank you, Chair.

    I'm afraid that's the time.

    Mr. Fergus, I understand you're next.

    Go ahead for six minutes, please.

    Thank you very much, Mr. Chair.

    I would also like to thank Ms. Dion and Ms. Gualtieri for their very moving testimony.

    Ms. Gualtieri, I wasn't aware of your situation, but I was very aware of Mr. Sabourin's and Ms. Dion's efforts to help him.

    I'd like to reassure you that everyone around the table agrees on the substance of this important Bill C‑290. We're trying to improve the legislation to ensure that we avoid the kind of problems like the ones you've experienced or witnessed.

    My questions will be a little more specific, and I hope you'll be willing to answer them.

    Madam Gualtieri, given your direct experience of this, what are your thoughts on this bill's expansion of protection to public servants, not the actual disclosure of wrongdoing but those who are involved in the disclosure of wrongdoings?

    I'm sorry. I had a very hard time hearing.

    What is my impression about the bill regarding the protection of what?

    We are all in agreement that we should protect the disclosure of wrongdoings. What are your thoughts on also protecting those who are involved in the disclosure of wrongdoings?

    They go hand in glove. We need to investigate what the disclosure is about, but you won't have disclosures unless you protect the person who is doing the disclosing. Wrongdoing will remain buried in secrets, in documents and in private meetings if people are not protected. You can't have disclosure or free speech unless it's protected. By doing that, we protect people. It's axiomatic that they go together.

    Thank you.

    Ms. Dion, I'd like to ask you the same question. Do you think it's important to have provisions to protect the confidentiality of whistle-blowers?

    This protection is essential because, when someone blows the whistle, a lot of things are at stake: their emotional state, their physical state, their family, and so on. If no one can protect these people, all that will happen is that nothing will be said, no one will blow the whistle again. You have to be suicidal, ready to lose your career and your life in order to come forward under these conditions. All of you here have a career in which you have put all your efforts. When you decide to talk about abuses that have been committed, you put your career on the line. If the legislation doesn't protect us, what do we have left? Nothing. You have to be a little crazy to blow the whistle.

    I have another question for you, Ms. Dion.

    Bill C‑290 proposes to remove references to good faith or having

“reasonable grounds” in sections of the act.

    Do you think this will open the door to unwarranted accusations? Is it better to have a framework that says that people must sincerely believe that a wrong or an injustice has been done?

    Mr. Fergus, when a criminal complaint is made, an investigation is conducted. You don't say that you don't believe the person who made the complaint and that you won't investigate. Someone will actually investigate and report back, and then a decision will be made.

    If a person files an unwarranted complaint, they will pay with their career. The legislation must govern that.

    In the case of Mr. Sabourin or Ms. Gualtieri, there were repercussions: People made counter-accusations against the whistle-blowers.

    Do you think there should be a limit and that people must sincerely believe that injustice has occurred before a complaint is accepted? Should there be a threshold?

    If you're talking about an initial decision maker, the answer is simple: never.

    The initial decision-maker collects the complaint and an investigation must be conducted. There is no smoke without fire. When someone reports illegal or criminal actions, when they come out of the shadows to make a complaint, but they aren't believed and the complaint isn't examined, it stays in the shadows.

    It wasn't—

    I'm afraid that's your time, Mr. Fergus.

    We'll go to Ms. Vignola, please, for six minutes.

    Thank you, Mr. Chair.

    Ms. Gualtieri and Ms. Dion, thank you for being here.

    You both wanted to improve the system, but you paid the price. You were honest, but it had a huge impact. For that, I say thank you.

    Ms. Dion, in your opening remarks, you said that the committee's work could help save lives. In fact, you repeated that in answer to a question. It's a powerful statement.

    You don't have to answer my question if you're uncomfortable with it. Do you know of any public servants who have ended their lives or attempted to do so because of retaliation as a result of a disclosure?

    I know of four. There's one I don't know personally, but it came to my attention. However, I know three public servants who tried to take their own lives because they were caught in a retaliation situation.

    That's already four people too many.

    They were great friends.

    Are you aware of any data on the number of federal public servants who have been placed on sick leave as a result of a disclosure?

    I've done some research on that, but I honestly don't know. But I think that long-term sick leave is very often associated with situations like that, so you just have to look at the number of public servants on long-term sick leave to get a sense of how many people have been under such pressure that it has destroyed their lives.

    You also said that as a result of everything you experienced, you suffered post-traumatic stress.

    Do you still have any symptoms associated with that? If so, what are they?

    I've been in therapy since 2014. Even today, I have a great deal of difficulty trusting others and forming interpersonal relationships. I still have nightmares and anxiety. Yes, I still have a lot of symptoms. I think that for someone suffering from post-traumatic stress, it's lifelong. The person must relearn how to live with themselves, after being broken and shattered. I know now that I'm going to have to learn to live with the broken girl who can no longer trust others, since even when I screamed for justice, it didn't work.

    Since Bill C‑290 is a private member's bill, we know that it doesn't have everything it would need now. It's up to the government to put things in place, particularly when it comes to money, and so on.

    That said, as it stands, if Bill C‑290 had existed when you were a public servant and needed support, would you have experienced the same incidents you did?

    I'm sure that today I would still be standing on my own two feet and would still have my career. So no, I wouldn't have been in this situation if Bill C‑290 had been in force. I would have had a minimum protection, as would Mr. Sabourin. We would still be in Ottawa working, and we wouldn't both be broken.

    The system would be better off now.

    Absolutely.

    Okay.

    Do you think that the people of Quebec and Canada in general are aware of the deplorable situation of whistle-blowers in the federal public service?

    No, the public can't know about it. It's hidden, completely hidden. When someone talks about it, what they say is discredited, because it's too big. We tell ourselves that it's not possible for this to happen in a machine, in a developed country like ours. Yet, it is, indeed, possible.

    That's why I say that every complaint deserves an investigation so that decisions can be made afterwards. It's important to see what's going on. When a public servant steps out of their comfort zone to come to you for help, take the time to activate the process. You have the power to initiate a complaint process so that we can look for, prove and find the evidence to remedy the situation.

    It seems that Mr. Sabourin was threatened with retaliation if he spoke to the media or to MPs. They went so far as to threaten to take away his pension. Have you received similar threats? Can you elaborate on that?

    There were threats to take away our pensions. We were reminded that we were bound by confidentiality. That confidentiality was for the work I was doing, not for the abuse I was experiencing.

    When a person is traumatized, when they are shaken, they no longer have all their head to think. When you threaten them directly, they'll freeze in place, not move, because they're being threatened and, on top of that, they may lose their pension.

    In my case, I’ve already lost years of service. I have only 15 years of service, and I won't even get a full pension because they pulled the rug out from under me.

    So we absolutely need Bill C‑290.

    Thank you, Ms. Dion.

     Thank you.

    Mr. Johns, you have the floor, please.

    First, thank you both for your courage and for seeking justice.

    Ms. Gualtieri, I'm going to go to you first.

    Would a public servant have a high chance of prevailing with whistle-blowing right now with the the passage Bill C-290?

    Maybe you can also speak about what is missing from Bill C-290. I was reading an article where you talked about other countries and what they've done that could be added to strengthen this bill and to even further protect workers.

     Thank you for that.

    Tom Devine was to be here today. He is the legal director at the Government Accountability Project. I have been working with him since 1998. In fact, I chaired the board at the Government Accountability Project. He is really the global leader in drafting legislation, so he will speak to this.

    Perhaps that's why I was emotional. I really do not speak about my case. I don't want to shine a spotlight on myself. I have been so involved in the legal aspects of it. We decided that he would speak to it today, and that I would speak more to the human dimension.

    Turning to your question of whether Bill C-290 gives a whistle-blower a fighting chance, I support deeply the passage of Bill C-290, because it's not just what's in the law; it's what it represents. It represents a step forward in this movement for transparency, accountability and employees' free speech rights.

     Will it do the job? No, it will not. That is because it is a very formidable machine that you're going up against.

    Monsieur Garon knows that, but he's limited by a private member's bill in what he can put in. The government has the pen to do a lot more. We are going to lean heavily on the government to do that.

    For instance, there's no provision for legal counsel in this bill. The burden of proof is not covered in this bill, though I believe there are going to be attempts to deal with that. When somebody comes forward with a complaint, the burden shifts to the other side to show that the retaliation was in no way linked to the disclosures they made. Without that, the complainant carries the burden of proof.

    How do you prove what is difficult, which is what your bosses were doing or what is buried in their paperwork that they've never shared with you? You should know that the documents in my case, when piled on top of each other, were five storeys high. It's a lot of information.

    This bill is really about kicking off a whole new debate about whether Canada is a country that is going to protect truth-tellers and those people who seek to protect us, the public.

    You have me thinking about something here.

    What does it say to you that the government hasn't tabled comprehensive legislation on whistle-blowing? Obviously, the previous government did, and it actually backfired in many cases.

     What does it say to you when we have consecutive Liberal and Conservative governments that haven't addressed this?

    I think it's a complete failure in leadership.

     I just came back from Ivey business school, where I teach every year. People are deeply involved in this issue. They see it as an assault on them.

     In the States, Vioxx, which killed 50,000 to 60,000 people, was taken off the market because of Dr. Graham's disclosure. In Canada, we had the blood scandal in the 1980s. Some 60,000 people—that was the number, but perhaps there were many more—died of hepatitis C and AIDS, because the government failed to screen the blood when it could have. People went to jail in France and other countries. Here, virtually nothing happened, even though we had a public inquiry.

    We really need to start engaging the public. Frankly, the governments until now have not been pushed enough. We need a media that's more engaged. We need parliamentarians who are engaged. We need a bureaucracy that's engaged, and we need to light a fire in the public to demand it.

    Thank you.

     I really appreciate my colleague for tabling this PMB in place of the government not doing its work.

    Ms. Dion, what will it mean for Canada if we pass this bill?

    I think that would allow for much more transparency and acceptance. In fact, no one is immune: mistakes and abuses happen everywhere. To accept that there are some is also to grow and also to get back on your feet, to have a stronger system, to have clearer rules and to fully accept the junior employees who are doing the work. Right now, these people aren't being listened to. There is no transparency.

    In my opinion, supporting and properly supervising these people will ensure that the government is more transparent with the public and in its entirety. It must not bury its head in the sand and must look at what's happening in its own backyard.

     Who was the last one for the whistle-blower...? Was it Zimbabwe? Who was at the end of the.... ?

    It's Zimbabwe.

    It was Zimbabwe or something like that.

    I'm neither proud nor happy to know that our country, Canada, is so far behind in this area. I find that hard to believe. I mean, come on. It's the workers who are supposed to make the change. It's terrible, what we're hearing. What Ms. Gualtieri said is terrible. That I lost my job and that Luc Sabourin was traumatized like that is terrible. Please help us. We're here today for you to help us.

    That's a bit more than our time, but thanks very much. I appreciate it.

    Mrs. Block, you have five minutes, please.

    Thank you very much Mr. Chair.

    I, too, want to thank you for being here today. It is very sobering. I recognize that it is probably very difficult to revisit these issues that you experienced while you were employed with the public service and obviously continue to carry with you, as has been pointed out to us by various witnesses.

    I also note that witnesses who have appeared before us in the last couple of weeks are here today, so I recognize that there is a community. I'm sure that has developed as a result of individuals who have had the same experience.

     In her submission, Ms. Forward made this observation, and I will quote it:

    She goes on to say:

    When we think about that, we recognize that this private member's bill, which is limited, perhaps, in how far it can go to address the issues, is perhaps a first step. As you pointed out, Ms. Gualtieri, you believe that it is the beginning of a debate that needs to be had in this country.

     I recognize that there is another saying that culture eats strategy for breakfast, so we can go a long way in putting mechanisms in place to address the issues that you've raised, but I do believe that we have to get at the culture of the public service, as Ms. Forward has pointed out.

    Do either of you have any suggestions for how we might go about doing that as we, at the same time, also address the issues through legislation? Do you know of any examples where a culture has successfully been changed in order to ensure that you function in a safer place?

    You go.

     Again, thank you very much.

    Regarding the culture, the most obvious example is the U.S.A. They have been the leaders in this. There is a lot of wrongdoing that goes on in the U.S., but there's a lot of right that goes on there as well. One of them is that there is a strong counter-power. Philanthropists in the States don't just give to the arts, ballet and music; they give to these causes. I worked in Washington long enough to see the billionaires who came forward and were giving to GAP and to other great causes.

    What changed the culture in the States? In 1986 the Challenger exploded and in mid-air seven people were incinerated. What we learned after that was that engineers had warned against that launch, but it was political to launch it. Reagan wanted to launch it. What did the people do? They flooded congressmen's and senators' inboxes with outrage. That really was the transformative period when it was no longer okay to ignore whistle-blowers. Things weren't perfect, because they would pass laws—and Tom drafted most of them—and then they would immediately step in and create loopholes.

    However, there has been a real change. I saw it at GAP when I was there. There were a number of things, like drugs that were killing people, the environment and nuclear plants that were poisoning people and got shuttered. Snowden, whether you agreed with him or not, kicked off a debate about whether the government could, without warrant and without right, go in and start snooping on you.

    Today, it is absolutely very risky for either government or private industry to ignore whistle-blowers. It's also very lucrative now, because there are lots of liability issues. With the False Claims Act in the States, lots of people are triggering it, and there are significant payouts being made. Let's be honest. Lawyers are doing lots of cases now, because they're participating via contingency fees in the payout.

    The culture changed, because the public demanded it.

    Thank you very much.

    Mr. Bains, you have five minutes, please.

    Thank you, Mr. Chair.

    Thank you to our witnesses for joining us and, again, showing your courage to revisit these stories and for your continued advocacy.

    Perhaps I can ask Madam Gualtieri. Several amendments to the act in this bill removed restrictions meant to prevent overlap with other pieces of legislation or bodies, such as subsection 19.1(4), which prevents individuals from “commencing any procedure under any other Act...or collective agreement” if they file a reprisal complaint.

    Would removing this restriction introduce significant overlap among recourse mechanisms?

    No. I'll give the straight answer on that, and Tom Devine is going to speak to you about this. Any right that is given under a whistle-blowing act should be additive. In other words, it should just be one option for the whistle-blower. Why would you support an act that restricts rights that are inherent? Our tort rights should be preserved. Our rights under the charter need to preserved.

    I sued the government. Do you know what the government did after I was successful at the court of appeal in a unanimous decision? They didn't appeal it to the Supreme Court of Canada. Instead, very quietly, in 2003, buried in a huge omnibus bill, they put in a section that said that a public servant has no right to sue anymore. That was section 236 of the Public Service Modernization Act.

    What I am telling you is that, in any enlightened democracy, the rights should be additive, but they should not be exclusive. The man who's had the longest history in drafting laws and in acting for whistle-blowers is Tom Devine, and he will speak clearly to this.

    I'll look forward to asking Mr. Devine....

    In addition to that, what problems could that cause?

     For decades in the States, where most of the litigation has gone on, it has not caused problems. You can't.... How is one supposed to find the time to marshal their case and then start multiple proceedings? That's not the way the real world works. They're going to pursue the avenue that is most effective and most efficient and will give them a chance to prevail.

    It just doesn't happen. It wouldn't be fiscally feasible for a whistle-blower. It is a comment that comes up, but it's just not supported by real-world data.

    I'll ask Madam Dion a question.

    The bill also wishes to add contractors to the definition of “public servant” under the act. Does this not create a constitutional division of power issue, as most contractors are covered by provincial labour legislation? Could you comment on that?

    I wouldn't see how it would create division.

    Madam Gualtieri, maybe you could—

    Speak to the issue of jurisdiction...?

    Yes, because it adds contractors to the definition of “public servant” under the act. There could be a constitutional division of power because contractors are mostly covered by provincial labour.

    Obviously, we have to deal with jurisdictional powers—it's constitutional. I think what needs to be understood is that it starts at the top. Once the Prime Minister and his cabinet and then his party and Parliament signal that there's going to be strong whistle-blowing protection for federally covered employees, that starts a cascade effect.

    I've collaborated with provinces. They looked to what was happening at the federal level because, as pioneers, there was a sense of “how do we do this?” A very poor precedent got set at the federal level, and the provinces followed.

    When our government turns this around and does the right thing federally, I am quite certain the provinces will follow.

    I'm afraid that's our time, Mr. Bains. Thanks very much.

    Ms. Vignola, you have two and a half minutes.

    Thank you very much, Mr. Chair.

    Ms. Gualtieri, you wanted to work in an environment that was efficient, ethical and accountable to taxpayers. I understood from your presentation that you were harassed. You went to great lengths to expose abuses in the department you worked for. If I understood correctly, you went as far as the minister, who at the time was the all-powerful Lloyd Axworthy.

    What was the response, and what were the consequences?

    I think that's a very critical question. There's a lot of sycophantic behaviour in government, as there is in institutions in general. I believe that all people should be treated equally, recognizing of course that there has to be deference and respect to your bosses.

    The question you ask is a far larger question than we can address today, and it goes to the whole issue of ministerial accountability, which has been eroded now for decades in Canada. There's a lot written about this, and I encourage you to talk about it when you're looking at the whistle-blowing legislation.

    With Axworthy, it was galling. He was going around the world as a champion of human and individual rights, and when I reached out to him, I felt quite confident that he would listen to the issue. Instead, as I said, a letter came back very quickly threatening libel, so I sued him. He became part of the process. That was 25 years ago. I would hope that today a minister would not so brazenly dismiss an employee who came forward with so much evidence.

    In short, you were threatened by a minister or by the government.

     Yes. They were very clear that—

    I'm afraid that is our time. I'm sorry. Maybe we can get back to you in the next round.

    Mr. Johns, you have two and a half minutes, please.

    I'll just let her quickly finish on that.

    Go ahead.

     The answer to that is correct. It was very clear that there was the threat of libel. It's a very convenient device to be used, but ultimately, as hard as it is, I believe that nothing is more powerful than truth.

    Can you talk a bit about due process for whistle-blowers, about what they are getting under the current act and what they would get under Bill C-290, and maybe about, again, more improvements that still need to be made to ensure there's fair process?

    That's an excellent question because, in order to have a chance to prevail, you have to be able to avail yourself of due process rights. Otherwise, you're into—what's the expression—tin pan.... The rights that are accorded under the current law are embarrassing. It is an assault on what Canada has historically stood for. They are weak, insipid non-rights, basically.

    This act is addressing that. It's strengthening it. It's taking out the good faith. Mr. Bains—or was it Mr. Fergus—raised the issue of good faith. This is an argument that collapsed a long time ago. We don't go into the minds of people to determine whether the facts or the evidence that they are bringing forward are true or not. This act deals with that head-on. It also gives an appeal for somebody directly to the tribunal.

    I have very strong views about the tribunal. I do not think the tribunal.... It has demonstrated by its track record that it has not been effective, and Canada is having a declining effect with tribunals.

    I am an absolute, strong proponent, as is Tom Devine, that you have to have access to our courts of justice.

    I just have a quick question.

    I asked Ms. Dion what it would mean for Canada if we passed Bill C-290. Can you speak about what it would be like if we failed to pass it?

    If we fail to pass it, it will be a dark day. It will be a national embarrassment. It will be an international embarrassment. It will be, frankly, a failure on the parliamentarians who failed to support it.

    How do you not support the issue of occupational free speech? It's not credible in a functioning and free democracy.

    Thank you very much.

    Mr. Barrett, you have five minutes, please.

    Thank you, Mr. Chair.

    Thanks to the witnesses for being here today and sharing their expertise and experiences with us.

    Could you provide me with some international examples of best practices for whistle-blower protections? I will give each of the witnesses an opportunity to respond.

    I think the best way to answer that—again, because time is sacred here—is that we can provide that to you in writing. I have been providing it to committees since 2004.

    Tom is really the master of these best practices. Many countries around the world have implemented them. We have, currently, one. This bill introduces many more, so it is progress, but as I say, you have to have a fundamental structure. You can have a car that you can put excellent gas in, excellent oil, excellent seats, etc., but if the foundation of the car, the chassis, is rusted, then you're going to have problems. We have some real structural problems in terms of where you are going to go for your remedy.

    We will provide you with those best practices. I think it will give you a lot of thought about what the next step is in introducing a bill.

    Before I turn my questions to Ms. Dion.... What is the best thing we could do right now? What is the most important thing that you would say needs to happen next?

     You have to endorse this bill. We can assist you with amendments. Again, it's limited. Spending cannot be in a private member's bill, and much of this relates to spending, remedies.

    A whistle-blower who sacrifices everything needs to be able to get a remedy. That is a spending issue. Legal fees are a spending issue. The bill has to be supported. It is an excellent signal that this is important. There are remedies that we will assist you with, and we will provide you with best practices and try to introduce as many as we can that don't infringe what a private member's bill can do.

    Thank you very much.

    Ms. Dion, do you have any best practices that you would like to share—

    She's the one.

    —with respect to the best step that we could take next?

    It's so vague and so large.

    I'm going to come back to the credibility of the complaints that are made. I think the first thing to do would be to ensure that complaints are acted upon and that people who report these situations are listened to. I believe that Bill C‑290 will provide the protection needed for anonymity and to allow things to go smoothly for both parties.

    I think that complaints should be acted upon and that every complaint must be listened to and investigated.

    Okay.

    Ms. Gualtieri.

    Do you have any time left?

    If you do—

    He has 45 seconds.

    The burden of proof is a big one. Gag orders.... I apologize. I should have raised this.

    I was put under what my lawyer, a very senior lawyer who litigated my case, said was the most draconian gag order he had ever seen. You cannot give rights under this act, and then, at the same time, gag people—which is done both at the front end in the employment context and then at the other end when they come out after disclosure.

    Non-disclosure agreements...?

    It's not only non-disclosure agreements, Mr. Barrett. It's also.... The departments have, basically, gag orders for what you can say or do, or how you can communicate in the workplace. Those cannot cancel out your whistle-blowing rights.

    That's very helpful.

    Thanks very much, Ms. Gualtieri and Ms. Dion.

    Thank you, Mr. Chair.

    Mr. Barrett, thank you.

    Mr. Jowhari, go ahead, please.

    Thank you, Mr. Chair.

    Thank you to both witnesses for coming here. Indeed, when you shared your experiences, it was a difficult time. Thank you for the strength you've shown. Thank you for the service you've provided to the country.

    I'm going to start with Madam Gualtieri.

    You talked about how there's an urgency to pass this private member's bill. We are all committed to making sure that the appropriate amendment is put in. I'm confident that, collectively, we will work together to put in the appropriate amendment to manage the scope and to manage some of the unintended consequences of some of the recommendations in there. Hopefully, we will send it back to the House, and it will pass.

    One thing that you mentioned was that you know there will come a point when this bill will pass. Fundamentally, what needs to happen is that there needs to be a cultural and socio-political change. My colleague, Madam Block started on that. This is where I want to do a little bit more of a deep dive because I believe the cultural and socio-political change could be something that.... My colleague, MP Barrett, asked what we could do immediately. Probably it's an area that we could explore, starting very soon.

    Can you help us to, kind of, demystify it or break it down and say what specifically needs to change?

    I know you talked about the public side and how the public got mobilized in the U.S. How about within the structure, within the government structure? What could be done?

     That's an excellent question.

    Listen, I joined the public service in 1992. My sister is also in the public service, and I've had other extended family members in the public service.

    I think that there has been a decline in the public service for many decades now. Increasingly, there was a concentration of power into the PCO, into what, at that time, we called the mandarin class. This has effected a strangulation on good, hard-working public servants.

    My discussion here today is by no means an assault or a denigration of public servants, because most of them want to do a good job. The question is this: Can they do a good job? People cannot engage in whistle-blowing with the stakes being so high, so how do you change the culture?

    Generally, historically, culture is changed when the people at the top decide that they're not going to tolerate the kind of abuse that's going on in the public service. I urge you to look at the surveys that started with Treasury Board in 1998. In my department, foreign affairs, the harassment rate was 25%. No private industry could operate with a 25% harassment rate. It's important.

    I believe Mr. Fergus raised this issue. Somebody asked about disability. There is a huge number of people in the public service on short-term and long-term disability. What is not disclosed, generally, is that the public service self-funds the disability. It is not Sun Life that is the administrator of it. No, it is taxpayers. They lose when the wrongdoing happens. They lose because of the inefficiency of government, and then they lose when people go on long-term disability. The taxpayers are funding that.

    The culture needs to change through a revolution at the top and when people are encouraged to be creative, to contribute and to make their highest contribution.

    Thank you.

    I have about 40 seconds left, and I'm going to give you that 40 seconds because you said that you wished you had addressed the burden of proof side.

    Here you go. You have 45 seconds.

    Burden of proof is a very straightforward concept, really.

    Generally, when you go into a legal action, the burden of proof rests with the complainant. With whistle-blowing legislation, it shifts the burden. In this instance, it would be to the government, which would have to prove that it did not retaliate because the person blew the whistle. It changes everything. It gives the whistle-blower a winning chance. Without that shift, they won't prevail.

    That is our time.

    Thank you very much for your time with us, Ms. Gualtieri. It's always a pleasure. Thank you for bringing up the reverse onus. I know from past studies that it's always come up as the number one issue that we need to bring in, so thanks very much.

    Ms. Dion, thank you, again, for your time with us. It is greatly appreciated.

    Colleagues, we're going to suspend for a couple of moments while we switch out witnesses.

    Colleagues, we are back in session.

    I'd like to welcome our two witnesses, who, I will say, are long-time friends of OGGO. Mr. Bron and Mr. Hutton were a great part of our last study and other studies on whistle-blowing.

    Gentlemen, welcome back. My sincere thanks for joining us today.

    I understand you each have five-minute opening statements.

    Mr. Hutton, you can go ahead, please.

     Thank you.

    Thank you to the committee for hearing us. I really appreciate it.

    I have to confess that I feel very nervous today. I don't usually, and I think the reason is that there's so much at stake here. We have such a huge issue. I think the committee's beginning to realize that. We've heard some wonderful testimony, and I want to try to build on that.

    I've been working in this field since before the PSDPA was introduced, and I've been studying, monitoring and reporting on this act for 17 years now. I've run a whistle-blowing charity for six years and operated a help-line, and I was contacted by more than 400 whistle-blowers. I soon realized that there was a very consistent pattern to the reprisals. Luc Sabourin's experience and Madam Dion's absolutely fit that pattern. You should not doubt a single word of anything they told you about what they experienced, because those experiences are absolutely typical.

    Reprisals are, obviously, initiated by the wrongdoers, who are typically ruthless and determined to protect themselves. However, they are aided and abetted by management, who see their primary duty as protecting the organization's senior leaders and their reputations, so their instant knee-jerk reaction to most problems is simply to try to cover them up.

    From the moment whistle-blowers begin to question what is going on, they are tagged as threats to the organization, as troublemakers to be dealt with, and all efforts are focused on destroying them to send a warning message to others. The consequence of failing to protect whistle-blowers is that we fail to protect ourselves, because the wrongdoers prosper, gain more power and go on to cause even more harm.

    There are two examples that Ian and I are very familiar with. In both cases, incompetent management bungled an early project, but by silencing the whistle-blowers, they were able to cover up their errors and appear successful. They went on to be rewarded with greater responsibilities, which they also bungled, causing truly major disasters. I'm referring to the Phoenix pay project and the Lac-Mégantic rail disaster. The trajectories are almost identical.

    In both cases, the cover-up continued even after the major disaster. The organizations failed to understand properly what went wrong, and no one was held accountable. Consequently, the necessary corrective actions have still not been taken. They continue to blunder, and we continue to pay the price in various ways.

    I think you already know that the PSDPA is an appallingly bad piece of legislation, but you may not realize how bad.

    I've studied it, and the reports I've written, going way back to 2012, have identified more than 40 problems. We cannot possibly fix all of these, but we can intervene surgically to make it work better. Decades of experience has taught us that combatting corruption with the help of whistle-blowers requires a complete system of protection with well-defined components. It's like a car—we've heard that analogy already—which, at a minimum, needs about five components. There is an engine, a gearbox, a set of wheels, brakes and—what have I forgotten—a steering wheel. Which of these components can we dispense with? None of them. If any one of those is defective, the car is immobilized. It becomes a useless lump of metal.

    In the same way, we have set out five categories in our criteria, describing the important components of a whistle-blowing system: freedom to blow the whistle without a whole lot of barriers, obstacles and traps so that people can raise the alarm; protection from reprisals from the moment people speak out; and redress for reprisals so that, if they do occur, they can obtain a remedy. Those are the three things that are necessary for the whistle-blower to do their job. The fourth category is protecting the public, and this requires stringent, independent and thorough investigations followed by corrective action that's actually put into place. The fifth one is, perhaps, not quite so obvious, but this is the measurements and information that allow you to see that the system is working because, without those, you have no means for monitoring or for determining what needs to be improved, so you're crippled there.

    All of those five categories have to work for the system to work. In the case of the PSDPA, none of them work—none of them.

     We have a challenge here to get them all working, and we can help you with that.

    I'm going to suggest that Ian pick up the baton here.

    Thanks, Mr. Hutton.

    Go ahead, Mr. Bron.

     Good afternoon, and thank you for inviting me to speak.

    I've studied whistle-blowing for over a decade, but just as importantly I was a whistle-blower in 2006. A former naval officer, I joined the federal public service after the 9/11 attacks. I quickly rose to be chief of transportation security regulations at Transport Canada. After witnessing serious misconduct and naively believing that I would be safe, I blew the whistle. This is before the PSDPA came into force, but I don't believe it would have protected me anyway.

    The reaction was overwhelming as the resources of the entire department were swiftly mobilized against me. I was falsely accused of security breaches and harassment. When a colleague and I fought back using the grievance process, the complaint was heard by one of the implicated individuals. It was maddening to experience so many abuses of authority assisted by human resources and the department's integrity officer.

    The cost and stress destroyed my finances, further damaged my mental health—I already had PTSD from my military service—and ended my marriage. It took me six years to escape this nightmare. Sadly, my efforts achieved nothing. The people and practices I was reporting remained in place, directly contributing to the conditions that allowed the Lac-Mégantic rail disaster to occur.

    One positive aspect of this experience was that I met fellow whistle-blowers. The similarities in our experiences made me curious, so I began to study the phenomenon. My Ph.D. dissertation examined whistle-blowing regimes in the U.K., Canada and Australia. I read the literature and interviewed dozens of whistle-blowers, officials, advocates, unions and academics. I scoured legal databases and official records. This helped me understand how whistle-blowing regimes are supposed to work, how they actually work and what is creating the gap between expectations and reality.

    Experience has now accumulated to the point where we can refer to numerous best practices. We developed our own best practice document at the Centre for Free Expression, based on these international standards and our own experiences. Using this, I've been assessing provincial whistle-blowing laws for about a year, and I've completed five assessments so far.

    After going through both the PSDPA and Bill C-290 painstakingly, my conclusion is that the PSDPA fails every major category of our criteria. As Mr. Hutton has observed, critical failures render it useless to nearly all whistle-blowers.

    Bill C-290 does significantly improve the PSDPA and is an excellent start, but it is not enough to make the PSDPA effective, and there remain some critical failures.

    First, many people who believe they are protected will not be protected because of the requirement for magic words—that is, if their disclosure is not said in exactly the right form or to exactly the right person.

    Second, there is still no duty to actively protect the whistle-blower from the instant they speak up. Instead whistle-blowers must endure reprisals, typically for years, before they can even apply for some form of redress. By this time, most are broken and give up, and the public interest issue dies.

    Third, there is no interim relief from reprisal for whistle-blowers. Perversely, there is interim relief for those accused of reprisals.

    Fourth, the Integrity Commissioner still doesn't have any special powers to investigate complaints of reprisal, so departments can simply stonewall.

    Fifth, processes to correct the wrongdoing remain fundamentally flawed as there is no standard for competence or timeliness of investigations. Departmental investigations are especially vulnerable to interference.

    Sixth, while the requirement for five-year reviews is positive, measuring or auditing the performance of the regime is still impossible.

    In sum, whistle-blowers remain consistently disadvantaged, and wrongdoers get the benefit of the doubt.

    To properly fix the PSDPA will require more changes. In general, future revisions must approach the law with a different mindset. Protecting the whistle-blower must be the priority, not an afterthought, because keeping the whistle-blower safe ensures that the wrongdoing isn't swept under the carpet. Investigations should meet standards of competence and be completed in a reasonable time. Whistle-blowers should be able to rebut evidence from implicated officials.

    I'll conclude with an important point that's sometimes missed by people who haven't experienced a reprisal. Whistle-blowing systems must be designed for the worse-case scenario. Whatever limits you might imagine would temper reprisals, such as structural and legal checks and balances, common sense or even normal human decency, discard them from your minds. Whistle-blowing regimes must be constructed as if those implicated will ignore such constraints, because the more serious the wrongdoing and the more powerful the wrongdoers, the more likely that is to happen.

    Thank you.

     Thanks, Mr. Bron.

    We'll start with Mrs. Block, please.

    Thank you very much, Mr. Chair.

     I want to thank both of you for joining us today. It was great testimony. Also, I read through the documents that were provided to us, and I appreciate your expertise on this issue.

    Last Wednesday, when asked by Ms. Vignola whether if he were to start over again he would have blown the whistle, Mr. Sabourin stated that he would have but perhaps in another way. He mused that he would put everything in an envelope and send it to the media because he felt that the system had let him down and abandoned him.

    Here we are today discussing this issue at a time when, very recently, the media has reported on receiving information from someone at CSIS alleging foreign interference in our elections. Sadly, it would appear that the Prime Minister is more seized with finding out who that individual was or is, rather than the nature of the allegations.

    In her testimony and a written submission, Ms. Forward states, “Legislation alone will not protect whistle-blowers. The overriding factor for success is culture.”

    I shared in the previous panel that I am very familiar with an old saying that culture eats strategy for breakfast. I'm not sure if it eats legislation for breakfast, but I'm wondering if you could share with us your thoughts on how we change the culture in the public service.

    I'll speak to that first. I think we have to start with the law. The sequence that I've heard is informed public outrage, which leads to enormous pressure on politicians, which leads to law. That's the sequence, and that's what we're seeing in other countries. We have no shortage of scandals that should have caused outrage in Canada, but we haven't had people in the streets and people going to jail.

    I can assure you that, if the law is changed so that some of these wrongdoers suffer consequences, that will be the start of a significant culture change throughout the whole public service. The very first time that it happens, the message will go out like a cannon shot.

    In the U.K. not so long ago, the CEO of Barclays Bank was personally fined over $600 million. His crime was not the wrongdoing he was accused of, because that was not considered serious. It was attempting to uncover the whistle-blower. He went to great lengths to find out who the whistle-blower was, and you can imagine what his intentions were. He was fined more than $600 million for doing that. That sends a signal, and that might cause other CEOs to think twice about launching a campaign to find the leaker.

    Thank you.

    If I could add anything, it would be that, if you want to improve the culture at the top of the public service—and I'll agree with the previous witnesses that this is where it probably needs to happen—you would want to also have a look at the way they're socialized. You would want to look at how they're hired, socialized and incentivized because, as it stands right now, senior public servants are mainly rewarded for making problems go away and not for fixing the problems, necessarily.

    Mr. Bron, in your assessment of Bill C-290, you made the observation that the improvements this bill make may “act as a Trojan Horse, luring unwitting whistleblowers with illusory protection.”

    I think the last thing we want to do is have the appearance of doing something when, in fact, we're not. We want to address doing nothing, but we don't want to pretend or be fooled into thinking we're doing something when we're not.

    You identified the five categories that are needed in order for whistle-blowing protections to be effective. How can we improve this bill right now so that it offers substantive protections to whistle-blowers?

    Are you asking for a specific list of fixes?

    I am asking for two recommendations. We need some recommendations to go forward with in order to improve this bill so that it isn't in fact a Trojan horse.

     We keep hearing this request for one or two things, and you got a good answer: Pass the bill. The second thing is to make the bill stronger.

    Clearly, in our judgment, there's no possibility of substantially changing the outcomes of this bill, which are totally unacceptable without some significant changes. We have some ideas for some changes that can be implemented within the limitations of the rules here for a private member's bill, but there are going to be some that are really important that we can't address. They are going to be critical, and if those are not fixed, the system will still not work properly.

    What we suggest you do is take on the task of identifying those as well, knowing that they will not make it into the private member's bill but that they are something that the committee can also report on if you so choose, because you're going to have plenty of opportunity to do that. You're going to hear some wonderful testimony from Tom Devine, who has been a tremendous support to us and has helped us with our criteria, and from other people, such as from Anna Myers. You're going to hear from some people who are extraordinarily knowledgeable and who will help you to identify what needs to be done.

    Thanks.

    Ms. Thompson, go ahead, please, for six minutes.

    Thank you, Mr. Chair.

    Welcome back, certainly, to committee, Mr. Hutton. It's nice to see you again.

     Mr. Bron, thank you for your opening words. I am quite touched by what you've gone through and very sorry that you have had to go through this.

    I certainly appreciate that this is an opportunity to take on a piece of legislation that's incredibly important, with some restrictions because it is a private member's bill.

     I will ask both of you to respond to this and maybe, Mr. Bron, you could go first. In light of the work the committee can do, what would you like to see the committee bring forward that would strengthen the impact of the whistle-blower legislation?

    I'm going to echo what was said by previous witnesses. The reverse onus is probably the most important and easiest fix, but I also think that this committee can do a lot by amending the law so that there's a mandatory review every five years, using meaningful performance measures and tying the government into a continuous cycle of improvement. Only that way can you ensure that the whistle-blowing act continues to remain evergreen and improves over time, because there will always be holes in the law.

    Could I just jump in for one second before you answer Mr. Hutton?

    Mr. Bron, when you spoke just now about the continuous cycle of improvement, does that link into your earlier comment about the measures and the monitoring that are necessary as part of the five steps?

    Yes, it does. There was, at one point for the PSDPA, a primitive logic model and performance framework. It was developed in 2008 and then promptly abandoned.

     You need to know where the weaknesses are in this system if you're going to fix them. That just doesn't exist. Nobody collects any meaningful data.

    Mr. Hutton.

     Yes, you're clearly hungry for very specific answers rather than generalities, and I'll throw out a couple of them.

    One we've mentioned already is what we call “interim relief” in the act. We first thought that was for the whistle-blower, and then we read it more closely and realized it was for those accused of carrying out the wrongdoing. They are fully protected—not a hair on their head could be touched while the process unfolds. There's nothing equivalent for the whistle-blower.

    We suggest that you take that provision, and just change it a little bit to make that relief open to everybody, to all the parties: the alleged wrongdoer, the whistle-blower and the alleged reprisers. That seems to be a very simple thing to do. I don't think it's going to cost money. It seems fair.

    The other thing you must do as you do that is to make that unconditional and immediate from the point that the disclosure is made and not under the control of the the Integrity Commissioner, at their discretion and late in the day after reprisals have occurred. I think that's perhaps a very simple way of turning the tables on this legislation, which had a different intent.

    The other suggestion I'll make is a very specific one. It is that the ability to go public is often very constrained. There's a person in Australia, A.J. Brown, who has done some wonderful research over decades in this field and whom perhaps you're going to hear from.

    His research showed that, in Australia, when looking across all the different states and the laws they had, some of the laws that didn't seem very well written were actually performing quite well. As they drilled down to try to figure out why, they realized it was due to one particular provision that appeared in several of them. It was basically that, if the system to investigate and protect the whistle-blower didn't work, then the whistle-blower could go public. It was defined this way: If it took too long, if they were told there was going to be no investigation or if they were told that nothing was going to happen, then they could go public after a certain length of time.

    What that does is it kind of turns the tables. The typical strategy of the agencies that are supposed to be protecting the whistle-blower is to delay, to do nothing, to keep them in the dark and to reassure them that things are going along, and then nothing happens. Cases have sat in the Integrity Commissioner's office for literally years without attention.

    It turns the table on them. What has happened in Australia is that the officials who are responsible realized that their worst nightmare—publicity—might result if they didn't go on and do their jobs and deal with the case. It doesn't cost money they don't currently have to do that either.

    Thank you.

    Mr. Hutton, do you feel that the PSDPA should exist as the best avenue for whistle-blowers to disclose wrongdoings?

    They currently have no alternative. Some of our witnesses in 2017 suggested scrapping it altogether because it's so complex, convoluted and full of traps. However, I don't see anybody putting forward any proposal like that, so I think we have no choice but to try to fix it.

    Thank you.

    Mr. Bron, if I could go back to you for a moment, I believe you referenced the importance of keeping whistle-blowers safe. Certainly, we've heard some fairly disturbing comments from witnesses who have gone through this process, and it has absolutely destroyed or damaged their lives with lasting implications.

    How do you realistically keep a whistle-blower safe in the very real world of having to really speak your truth to power and hold that truth as, often, the only voice in the room?

    Mr. Hutton has already spoken to one, and that is the interim relief. If you can intervene to stop any disciplinary processes, that is certainly one. The other one is to have avenues for redress that are easily accessible and that serve as a kind of deterrent to people who might make reprisals. Of course, there are things that already exist such as confidentiality and allowing for anonymous disclosures as well. Those would also be helpful for people who feel too endangered to identify themselves.

    Those are the three big things. There are smaller things you can do as well, such as separating the whistle-blower from the reprisals.

     Thank you very much, Ms. Thompson.

    Ms. Joanne Thompson: Thank you.

    The Chair: Ms. Vignola, you have six minutes, please.

    Thank you very much, Mr. Chair.

    Mr. Hutton, I have a lot of questions that come to mind. You talked about Australia and the right of whistle-blowers to make their disclosures publicly when the delays are too long. Are there any numbers on those delays? If so, what are they?

    There will certainly be information available about that. A.J. Brown has published all kinds of research over the years, and that would be pretty easy to find out. That was introduced.... I can't say exactly how long ago, but there's certainly been a few years of experience, so that we would know how that was working. I'll just point out that his research showed that it was already working in a number of states, and that's why it was introduced more broadly.

    Okay, thank you.

    You both mentioned Lac-Mégantic. I also know that there was a derailment in Prescott. In the Prescott case, I learned that someone had sounded the alarm and raised the possibility of a derailment there, but no one listened to them.

    Why don't we listen to the “juniors” and do what we want, why crush those who want to improve the system? What's the reason for this culture? How could we actually change this culture so that situations like the ones Mr. Sabourin, Ms. Dion, Ms. Gualtieri and Mr. Bron mentioned never happen again? How do we do that?

    I describe this phenomenon like cancer, and I described, when I was introducing this topic, how wrongdoers get away with things. They get promoted. They get more.... These are people who are, typically, both incompetent and dishonest, and they are totally focused on their own careers and self-interests.

    If you can take those people out of the system, that sends a huge signal, and that's what's not happening in places like Transport Canada, where you have incompetent managers being promoted and disasters happening and no consequences for them. It's the same with Phoenix. There are no consequences for the people who created and designed this disaster, and there are no consequences in terms of understanding today what actually happened.

    A few times today, mention has been made to removing the clause on good faith or good intentions.

    I'd like to do a test with you, Mr. Hutton or Mr. Bron. Can you tell why I support Bill C‑290 and whistle-blowers? What are my intentions? Am I acting in good faith or am I looking for glory?

    You're asking about good faith. This discussion comes up every single time that we introduce new people to these laws. There's fear propagated that you're going to be overrun with people with these frivolous accusations. It conjures up in my mind a vision of all these people jostling and fighting each other to get to the front of the line for their turn at the guillotine. This is what it's like. You don't rush towards career disaster. Even with the strongest laws that exist in other countries, whistle-blowers only get a remedy about a third of the time, so two-thirds of the time, they're going to lose their careers anyway. I don't think there's a great rush for people to step forward in that way.

    Currently, as a member of Parliament, am I acting in good faith by supporting the Bill C‑290 or am I seeking glory, perhaps even revenge? Are you able to determine that?

    I can't determine the motives of MPs, no. I look at their actions, and I look at the facts. That's what we should all do.

    If I could intervene....

    I always find this question to be a bit of a dog whistle. It suggests that whistle-blowers are a problem, that they need to be managed, and that's not the case. There are very few people, as David said, who are going to put their heads into the mouth of a lion.

    You're reassuring me.

    I'll also reassure you that I support Bill C‑290, not because I'm a troublemaker, but because it's the right thing to do for our citizens and our workers. However, you're demonstrating that it's impossible to know what a person's true intentions are in a disclosure or even in supporting a bill.

    Thank you, gentlemen.

     Thank you, madam. I appreciate it.

    Mr. Johns, go ahead for six minutes, please.

    Thank you both for being here and for your important work and testimony.

    Can you speak to how to evaluate the effectiveness of a whistle-blowing system and also the timeliness in terms of the system's response to complaints?

    You have to start by understanding what the objectives of the law are and the steps you're going to have to go through to get there. Once you have an idea of how the law is supposed to work, then you need to develop some sort of performance framework. This pertains to what it is important that the law accomplish, how it helps people and whether it is going to be timely. Then you start looking at things like performance indicators and collecting the data that suggests this.

    This sounds very theoretical, but what you need to know is how much time it is going to take to investigate each of these cases. Is it a reasonable amount of time? Is the investigation being conducted satisfactorily? Are the whistle-blowers who go through the system happy with the way they are treated and the resolution they get at the end?

    It's the same for the people who are accused of the wrongdoing. You would like to know what the baseline of the wrongdoing that people observed when the program started was and how it has changed over time. Right now, none of these questions are being asked. Everybody in government can say, we have a law and it works fine, and there's no way to contradict them really.

    There are changes to the bill that would help circumvent that. I'd like to hear about the five-year review and how that plays into this and that same question. Also, I'd like to know about the important role of the Integrity Commissioner and why that appointment is so critical.

    I'd like to speak to that one.

    Something we've not really talked about is the role of the Integrity Commissioner. That's actually crucial in this system because this act is appalling bad as it is. It does actually give the Integrity Commissioner a fair bit of power. In fact it has all the power of the Inquiries Act. The reason we have almost no results from this act is that the Integrity Commissioner has a whole host of excuses that they can give to do nothing, and they have consistently done that. I'm not saying that these are bad people, although I question what Madam Ouimet was thinking about in her tenure.

    The problem is that, when you appoint people who are socialized and brought up in the bureaucracy and who expect to go back to it in some sense, then you're putting them into an incredible conflict of interest. If this starts creating user bias for the minister, they're going totally against the whole ethos and set of values of the public service, of the norm.

    We have an Integrity Commissioner who is basically viewed as part of the bureaucracy and who behaves like a bureaucrat—

    I think the results speak for themselves in terms of convictions.

    We've heard some concerns about the bill—you've heard them here—and the expansion of protections to employees, including contractors, specifically jurisdictional issues around subcontractors, who are provincially regulated.

    Mr. Bron, you talked about some of the work you've done and your experience working with provinces as well as with other jurisdictions around the world. Can you help address some of those concerns and the importance of covering them or not covering them?

    There are already a number of jurisdictions in Canada that offer protection to contractors who come forward with concerns consistent with what's in Bill C-290.

    The best practice standard is that you protect any person, any worker, who comes forward with a concern. We've heard some concerns about jurisdictional issues, but to me this is a bit of a red herring. What we're trying to do is regulate the behaviour of federal public servants. They're the ones making the reprisals. They're the ones who are probably central to any wrongdoing that's been disclosed.

     Another concern around whistle-blowers is having the freedom to choose to which supervisor to report the wrongdoing. Can you speak about that?

    One thing that can happen in a whistle-blowing case that goes sideways is that you will get an energetic investigator or recipient of a disclosure who insists on bringing the issue forward for the discloser. Management may not like that, so they'll start taking action against the investigator or the recipient of the disclosure to try to shut them up. This is why you have to consider the people around the whistle-blower as well, because multiple points of pressure can be applied when making a reprisal.

    It's the duty to protect.

    Could I add to that?

    Mr. Gord Johns: Go ahead.

    Mr. David Hutton: It's important to give the whistle-blower quite a few choices about how they can proceed.

    First of all, they might not be fully aware of all the rules. You don't want them to lose protection just because they didn't read the rules carefully enough. Secondly, they're taking a huge risk with their careers. They need to be able to go where they think they may have a chance. In some cases, they will absolutely know that there are certain avenues that they cannot pursue. They need to have alternate avenues. They should not be forced, for example, to report to the very people who may be in charge of the wrongdoing. That would be a bad idea.

    Thank you.

    Thank you very much.

    Go ahead, Mr. Barrett, and then we'll have Mr. Fergus.

    Thanks very much, Chair.

    Gentlemen, thank you for joining us today.

    With respect to the appointment of the Integrity Commissioner, I want to go back to your exchange with Mr. Johns. What solution would you propose for the appointment and selection of the Integrity Commissioner? From what pool should they be drawn? What requirements should the government have with respect to the appointment process?

    We've seen in the past that, when commissioners have given news that's bad for the government, the government hasn't filled those roles. We've seen that with the victims ombudsman, an office vacant for over a year. We've seen that with the veterans ombudsman. The opportunity for a government that could be embarrassed by a process to just not fill the role and freeze up the process might incentivize bad behaviour by a future government.

    What would you suggest as a remedy for the situation that I've described?

    You're describing fairly accurately what the problem is. We have to tie the government's hands, to some extent. We're talking about the appointment of an officer of Parliament. That does involve both parties and both Houses, so in theory, at least, there is the opportunity to object to certain appointments. That hasn't happened, perhaps because those opposition parties haven't seen this as an important enough issue. There has been really no challenge.

    What needs to be written into the law is that the person who fulfills that role does not come from within the bureaucracy and is an independent outsider. This was, in fact, the type of person who was appointed to the very first whistle-blowing agency, which was the PSIO. It preceded the PSIC and operated under just a policy and not legislation. The person responsible for that was Dr. Keyserlingk, who did a wonderful job, given his very limited power. He used his office to campaign for a better regime, one entrenched in law, successfully.

    As he was departing, he had a conversation with PCO—this is all documented—saying that it was very important to appoint people from outside the bureaucracy for the reasons we've discussed. According to Dr. Keyserlingk, PCO agreed with that and said they would do just that. He asked a number of people to put themselves forward who he thought were good candidates. They were not even consulted. Their applications were not even recognized. He wrote about all this to this committee. You have that on file somewhere.

    The answer is to go back to what Dr. Keyserlingk recommended. Appoint people who are actually capable, credibly, of carrying out what is virtually a law enforcement role within the government, where you're required to undertake energetic investigations of alleged wrongdoing that could be occurring at any level.

     It's interesting that, when you look at the officers of Parliament—these roles that were created—the government, through Governor in Council appointments, has the ultimate say. Sometimes Parliament could be left with a choice to either accept the government's recommendation or leave the role vacant by not ratifying the government's selection.

    I would just draw to your attention the current vacancy in the office of the Conflict of Interest and Ethics Commissioner. There are very stringent requirements for who can be appointed and for the credentials required to be appointed to that role, including being a former federal court judge. The Judges Act sets the salary for a judge. The new Ethics Commissioner will receive 40% less than a judge. Therefore, for the pool of qualified individuals they are looking to draw from it is now, “If you're interested in this position, you'll earn 40% less, but we assure you that we take this work very seriously.”

    There are different ways for them to interfere, so I take your suggestion well and will refer to the documents that you referenced. I'm sorry that I don't have more time.

    Thanks very much.

    Thanks, Mr. Barrett.

    Mr. Fergus, you have five minutes, please.

    Thank you very much.

    I really do appreciate the testimony from these two witnesses. Let me just reassure them that of course we are looking at ways to make sure that we could.... There needs to be an update to the whistle-blower protection act. There have to be changes, which are being brought about. We have an opportunity right in front of us to bring forward some important changes that would be connected with Bill C-290.

    With that understanding, I'd like to turn to you, gentlemen, to help us try to improve the act and to make sure that we will have something that can work within the confines, of course, of a private member's bill and the limitations that we have in that. We could see this as a first step toward a government bill that would come to improve the act. Nonetheless, let's take advantage of the opportunity that is in front of us here.

    You mentioned, Mr. Hutton, the PSIC and its predecessor, the PSIO. I'm keen on this notion. In the private member's bill, there is an intention to create an intermediary body or to transform the role of the tribunal. It would serve as a sort of way station between the Public Sector Integrity Commissioner and of course a very expensive federal court system, which would be very expensive to the whistle-blower if they were to choose to go down that route, which should be their right.

    Would creating this tribunal as a way station diminish the role of the PSIC as you see it? Would that then imply, for those being accused of wrongdoing, that there would be an obligation for government to extend some legal services to them so that they could defend themselves in case they were being wrongfully accused of wrongdoing?

    You raised several good points there.

    A feature of our current system is that it is completely sealed off from the real world. There is no access to the courts and no access, through access to information, to any of the information brought forward regarding wrongdoing, for example. It disappears forever, and the tribunal is deeply flawed.

    We said from the start that there should be access to the courts—the regular courts—with the normal rules regarding judges and so on. That has been denied here. That certainly ought to be available. One thing I would point out is that the only way people can challenge decisions of the tribunal or decisions of the commission is through judicial review. Every single judicial review, I think without exception, has excoriated the decisions of the Integrity Commissioner, yet that doesn't amount to redress because a judicial review does not allow them to replace their own ruling. That is a huge problem in the act.

    Even though it is expensive and difficult, access to the proper court has to be there as a kind of check and balance that the tribunal is doing its job, and so that it can be overruled if it's distorting the law and finding against whistle-blowers when it should not.

     Is that a recommendation that you would have for Bill C-290, then, to not direct people towards having a judicial review but to having access to the regular court system?

    I'm not arguing against judicial review. I'm saying that there must be access to the courts.

    I'd also make the point that it's absurd, insanely absurd, that a whistle-blower goes to the tribunal with no support. He might have some financial support from his union if he's lucky. On the other side, you generally have a team of lawyers, paid for by the government, representing all the folks accused of doing bad things. The optics of that are terrible, and that's the current reality.

    This is a very interesting point. You're calling, then, for a levelling of the playing field in terms of having access to legal representation.

    I'm afraid that is our time.

    Oh, I'm terribly sorry.

    Thanks very much.

    We'll now have Ms. Vignola for two and a half minutes and then Mr. Johns for two and a half minutes. Then I need 20 seconds for some committee business.

    Go ahead, please.

    Thank you, Mr. Chair.

    Mr. Hutton, I'd like to ask two quick questions, of the many I have left.

    Based on your knowledge, do you think it's legal to prohibit a citizen from asserting their rights in court?

    It should never be.

    Thank you.

    If a private sector employer harassed, threatened or intimidated employees, what would happen to that employer?

    I think it depends a lot on the management of the organization. In a well-run organization, there's zero tolerance for that, because harassment is a signal of incompetence. It's a controlling style of management that signals to you....

    This is not a soft issue. The issue is not that we shouldn't be nasty to people. The issue is that, when you see someone using a harassing style of management, you know that they're incompetent. You know that they cannot deliver the goods, because that's the style used by people in that situation.

    Earlier, you talked about reversing the burden of proof. Why is it so important to do this?

    I'll tell you a quick story on this.

    It's been known since the early 1980s that you need a reverse burden of proof. At the first attempt to do this in the U.S., of the first 2,000 whistle-blowers who went through this system, four prevailed, so the chances were one in 500. Those were not good chances. The next attempt at writing the law introduced this idea of a reverse burden of proof. That caused a big improvement. It's still not a slam dunk for the whistle-blower. Even with the best lawyers, to date only about 30% succeed.

    Our law was written without reverse onus. More than 20 years later, the Senate tried to put in a reverse burden of proof. They introduced 16 amendments based on our testimony—all stuff that will look very familiar to you today, including reverse onus. It was rejected.

    We have been in the dark ages ever since the bill was written. The bill reads like an insult to whistle-blowers. It reads like a message that says, “We are going to screw you over, and here are all the ways we're going to do it.”

    Thank you.

    Thank you for your work and for being here. We appreciate it very much.

    Thank you, Ms. Vignola.

    Mr. Johns, go ahead, please.

    We've heard concerns that the requirement to provide support is not sufficiently defined and that it could impair confidentiality provisions. In your opinion, what would a good definition of support look like, and how could this harm a whistle-blower's ability to remain anonymous?

    I think we're getting into questions that have a lot of moving parts. We'll offer to provide follow-up answers in writing to almost anything you've asked.

    I should say that in other jurisdictions this is a reality. We know how it's done. It's being done in lots of places. It's not impossible. It's not even very difficult. You're best to talk to people from these other jurisdictions who can give you chapter and verse.

    Do you think the addition of abuse of authority and political interference as categories of wrongdoing is a positive addition? Do these categories present any issues, or how can they be better defined?

    I think people should be able to report anything that they see as being wrong. If the 911 service operated the way that this law operates, when you called in you wouldn't be asked which service you wanted. You'd be asked what law was being broken and which section, if you could forward with the proof, and if you'd like to breathalyze the person.

    That's the way it works, but you should be able to come forward and say that this is wrong, that you don't know which law it affects, but this is clearly wrong. I'm just a witness. I came along and saw this. I don't have all the information. It's your job to go investigate and figure out what actually happened. Find all the rest of the evidence and find out if I'm just mistaken.

     I have 30 seconds left. I'm going to give it to you. Is there anything you want to add to close?

    It's so important for this committee to step up to the mark here. I believe that it will. I believe this bill is going to pass. I believe that, even with your best efforts, it will not significantly change the trajectory because of the limitations of the private member's bill. I think you should look at ways to signal very clearly what else needs to be done now and not wait for this task force that could be another few years.

    We've gone 17 years without a single solitary improvement to this law. It's delivering zilch. It's an insult to Canadians. We need to fix it now, so please help us do that.

    Gentlemen, thank you very much.

    For anyone sitting at home viewing—I know there are tens of millions—you can see why I call Mr. Hutton and Mr. Bron friends of OGGO.

    I sincerely appreciate your appearance and your time and your advocacy. I'll excuse you. I just need to gather my colleagues for about 30 seconds for some other business. Again, gentlemen, thank you sincerely for everything you've done and thank you for your time.

    Colleagues, before we adjourn, the clerk was kind enough to distribute the revised budgets for the oft-delayed shipbuilding tour. I need committee approval, the first one for the national shipbuilding strategy east.

    Some hon. members: Agreed.

    The Chair: The second is the west tour.

    Some hon. members: Agreed.

    The Chair: If there is nothing else, we will adjourn.

    Thank you very much.