No, Mr. Chair.
Evidence of meeting #55 for Agriculture and Agri-Food in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
Evidence of meeting #55 for Agriculture and Agri-Food in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
9:10 a.m.
Vice-President, Policy and Programs, Canadian Food Inspection Agency
No, Mr. Chair.
9:10 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
Okay. Mr. Payne indicated that there's already such protection. I'm in support of this section; I should tell you that first. I am in support of this particular section, but I still want some clarification.
Can you tell me where that protection currently exists? If so, if it appears in other legislation, how does it connect to this legislation so that a whistle-blower in these circumstances in whatever plant, whether it be a processing plant or a ready-to-eat meat plant, can actually blow the whistle and be protected?
9:10 a.m.
Vice-President, Policy and Programs, Canadian Food Inspection Agency
The Criminal Code was amended in 2004 with general protection for employees who bring information forward to enforcement officials. That section is section 425.1. I'll ask Ms. Adair to reference it in a moment.
I just would like to say that, in our view, the Criminal Code provisions do cover workplaces and employees in establishments governed by the Safe Food for Canadians Act. Therefore, there is that protection that currently exists.
Moreover, I would say that law enforcement agencies and the justice system are best placed to address the issue of whistle-blowing. They have the machinery to support employees who feel that they would like to take advantage of such protections. The CFIA does not look at this issue as one in which it is well equipped to support in the way that the justice system currently does.
If I may, I'll ask Ms. Adair to cite that part in the Criminal Code.
9:10 a.m.
Legal Counsel, Agriculture and Food Inspection Legal Services, Department of Justice
The English version of section 425.1 of the Criminal Code states:
(1) No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so,
(a) with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or
(b) with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.
For “Punishment”, in subsection 425.1(2) we provide that:
(2) Any one who contravenes subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
9:15 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
If I can just recreate a set of circumstances here, I'm employed at a food processing plant. I'm concerned about the activities of somebody, activities that I think are leaning towards violating the legislation. I want to blow the whistle. I talk to somebody in advance of doing that because I'm afraid for my job. They say to me, “Frank, you're protected already because the Criminal Code says that if you blow the whistle and anything happens to you, that person can be charged.” Right? Charged. That's a big deal—charged.
On the other hand, I go to somebody and ask them and they say, “You know what? The legislation was changed. You can blow the whistle and they may not charge that person, but you are protected under this legislation, which is non-criminal legislation.” You can clarify that for me, but it's non-criminal legislation. In other words, if there's a violation, it's not a criminal act. It gives that person some comfort to know that they've got the protection of legislation that doesn't force upon the violator a criminal conviction. That's number one.
Number two, under the Criminal Code, they would have to establish beyond a reasonable doubt—you can correct me if I'm wrong—that the person violated the Criminal Code, which is a high threshold, as opposed to this legislation that's proposed, which is on the balance of probabilities, which I believe is a lower threshold, such as more than a 50% chance.
Given what I see already as a conflict in this very legislation between the need to promote trade—and I honour that—and not, for instance, to stop a plant that's processing 4,000 head a day through some vexatious claim, and on the other hand the need for food safety, would you not think that a person should at least have the protection of non-criminal legislation so that they could go to somebody and say they have reasonable grounds to believe that something is going on and it should be checked out, so that at least at that level, food safety comes first and not necessarily trade?
There are two questions there.
9:15 a.m.
Vice-President, Policy and Programs, Canadian Food Inspection Agency
Perhaps I'll start, and then I'll ask Ms. Adair to follow up on some of the legal questions embedded in your question.
First of all, I want to say that certainly if an employee in a food processing plant brought to the CFIA's attention matters with respect to food safety or other conduct in the plant, the agency would take very seriously those claims and would follow up in an administrative manner to the best of its ability. I want to assure you that that is the practice when it comes to food processing plants, and of course CFIA officials who are situated in the plants on an ongoing basis are looking after food safety and other regulatory oversight responsibilities, and they therefore enlist the support of employees at the plant and would listen to those legitimate concerns.
With respect to the coverage in the proposed bill, Mr. Chair, I would say that in our view the criminal sanctions are strong. They are robust and are adequate to protect whistle-blowers in the situation the member described, so we're satisfied with the sanctions that are in the Criminal Code that cover this provision. As I mentioned, our view is that the justice system and law enforcement agencies' treatment of whistle-blowing is appropriate, and that it is appropriate that law enforcement officials and justice officials are the ones who administer that whistle-blowing protection.
9:20 a.m.
Legal Counsel, Agriculture and Food Inspection Legal Services, Department of Justice
With regard to the criminal versus regulatory—and this would be a regulatory offence—according to the scheme in the bill, it would be covered under clause 39 of the bill, so there would be penalties and fines involved. Although the Criminal Code provides for five years, if you look at clause 39, you would have either:
(a) on conviction on indictment, to a fine of not more than $5,000,000 or to imprisonment for a term of not more than two years or to both;
So you're coming to similar penalties with regard to a regulatory offence.
9:20 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
But what's the threshold? Is it beyond a reasonable doubt or is it on the balance of...?
9:20 a.m.
Legal Counsel, Agriculture and Food Inspection Legal Services, Department of Justice
No, it's not.
9:20 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
It is on the balance of probabilities. It gives the whistle-blower, and those circumstances they find themselves in, a little more likelihood of pursuing the matter and a penalty being imposed without their having to establish beyond a reasonable doubt.
9:20 a.m.
Legal Counsel, Agriculture and Food Inspection Legal Services, Department of Justice
It would be up to the crown to decide. They have discretion on whether they are going to pursue it or not. But you are correct.
9:20 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
Under the current legislation in the Criminal Code, have any of you been involved in a case where somebody blew the whistle and somebody was charged and convicted?
9:20 a.m.
Legal Counsel, Agriculture and Food Inspection Legal Services, Department of Justice
I have not.
9:20 a.m.
Liberal
Frank Valeriote Liberal Guelph, ON
None of you.
I think that speaks a lot, Mr. Chair, to the fact that the Criminal Code really doesn't work. It speaks a lot to the merit of the NDP and Mr. Allen's amendment here. If the threshold is a little lower, it's more likely that somebody is going to come forward and say something's wrong here, because then they're not concerned that the person who is actually in violation is going to be charged criminally and it's only going to be dealt with at this level. Given that it's the safety of our food—I think it should be clear that notwithstanding the constant reference to unions, it's not always union workers who are involved—I think there's a lot of merit in this proposition.
November 6th, 2012 / 9:20 a.m.
NDP
Alex Atamanenko NDP British Columbia Southern Interior, BC
I think in general we have a responsibility to make it as simple and as a safe as possible for employees to raise their concerns. It's my understanding, for example, that there are different cultures in different companies. When you compare XL with Cargill, from what I've read, there's a more open culture in Cargill, for example, so it's easier for employees to raise concerns. And we haven't seen problems in Cargill.
Yet from what I've read, there were people who would have wanted to raise concerns, but they were afraid to do so, even under the existing legislation under the Criminal Code. I think we have a responsibility to add some extra insurance. It's not going to hurt anybody to have extra insurance in this bill to ensure that people can actually come forward and feel safe, so that everybody wins. It's a win-win: the employees, the employer, the producer certainly, and the consumer. I don't even know why there's any opposition to put this into the legislation.
9:20 a.m.
NDP
Ruth Ellen Brosseau NDP Berthier—Maskinongé, QC
I know we're outnumbered. I know in politics, in discussions like this, you have to pick a hill to die on. This is a hill I would want to die on because these fines are rarely imposed. In paragraph 39(1)(a), when we're talking about the indictment and the fine of not more than $5 million or imprisonment, this doesn't happen very often, when it comes to food safety, right? I think it was mentioned earlier that it's never happened; we've never seen this happen.
Whistle-blower protection is something that we've heard...the union representative was talking about the culture in XL Foods. I have never worked in a slaughterhouse. I've visited Cargill with the committee and I know it's very important to have a good culture. When you're dealing with food you have rules, and if you don't follow those rules, you're putting Canadian safety at risk.
This is something that I think we need to have in the legislation. We're supposed to be working together to make it the best it can be. I would be really disappointed if it wasn't included.
9:25 a.m.
Conservative
Pierre Lemieux Conservative Glengarry—Prescott—Russell, ON
Thanks, Chair.
Listening to the discussion, I think it would be very unwise to have two standards for whistle-blower protection. I think that's what's being advocated here.
The Criminal Code defines whistle-blower protection. It's a serious matter, and it should be a serious matter because we're talking about taking a disciplinary measure against an employee—demoting him, terminating him, otherwise adversely affecting the employment of an employee, or threatening to do so if he blows the whistle on a particular situation. It's a serious matter.
It would be unwise to embed in an act something that is whistle-blower protection but something less, because then you would have multiple definitions based on multiple acts. That's kind of what you're saying, “Well, this is different; this is food safety. We need to have something different for whistle-blower protection.” But then you could make that case for almost any act, that each act should have its own slightly different definition of whistle-blower protection. Then you could imagine the confusion—what applies when, what is the definition of whistle-blower protection, when does the Criminal Code kick in, etc.
I think, Chair, that what's in the Criminal Code is sufficient. If there is grave concern that the Criminal Code provisions are too strict, then changes should be made to the Criminal Code, which is beyond what we're doing here today. But that's where the changes should be made, so that there is, once again, a single reference in the Criminal Code as to what whistle-blower protection is offered. This idea of having multiple standards, I think, does not serve Canadians well. It's just going to lead to confusion. A few years down the line there will then be an attempt to rationalize whistle-blower protection back into one, clearly understood provision under one act or one code, such as the Criminal Code. That's why I would be against this, Chair.
9:25 a.m.
NDP
Malcolm Allen NDP Welland, ON
Let me start with Mr. Lemieux's assertion that it should only be in one place. I'd suggest that the government talk to the Competition Bureau, because they actually have whistle-blower protection in their act. It's already there. The government should know that it already has a double standard. It has already created it, and perhaps it should just be extended.
It's not actually a double standard, in my view. The Criminal Code always has a higher threshold, as it should, because you're talking about potentially incarcerating people. The standard should always be higher than what is basically an employment law piece. We're talking about losing your job, not committing a crime against someone by beating them up or threatening to take away their first child. None of those things is actually happening.
This is about losing employment or losing the opportunity within your employment, of perhaps getting a promotion if you do something or say something. It isn't one dimensional. It's not about a unionized place; it's about any establishment across the country, big or small, whether it be one or two employees.
For those of us who have worked in employment law, from whatever perspective, as lawyers, representatives, advocates of any description, we all know that 99.9% of the time these cases never go before the courts. There is usually a counter claim in the court by the employer, who hires a better lawyer who costs more than yours—it costs you a whole whack of money—and you settle out of court for a sum of money based on how many years you've worked there. Those are the deals that are cut across this land all of the time. I know that because I used to do it for a living. That's how it works, friends; it's no different from that.
The fact is that the government already has a whistle-blower protection act inside the Competition Bureau act. This simply does the same thing.
To Mr. Lemieux's point that it doesn't lay it out, it actually does lay out how it would happen.
The intent here is to recognize that we're not talking about the threshold of indictable offence, where you would have to go before the crown prosecutor and convince the prosecutor you had enough evidence yourself. It's you, as an individual, who has to bring the evidence forward to convince the crown to actually pursue something, who would then look for more evidence. It's an extremely high threshold to try to match.
That's why the intent of this is to say that the reality of the workplace is that the threshold for the protection should be lower, not higher. Indeed, the Criminal Code is in effect, and if we were to get to the point where, heaven forbid, the employer took action that would be an indictable offence, then the crown should move appropriately. No one denies that shouldn't happen. But what we are talking about here are the everyday occurrences inside a workplace that aren't necessarily organized. They have their own mechanism.
To Mr. Bouwer's point that the “CFIA would take seriously”, we absolutely agree with you, sir. This is not what this is about. This isn't about them not taking it seriously when someone comes forward. We absolutely agree that this is exactly how they act. We respect the fact that they do, and we admire them for that. This has nothing to do with saying that the CFIA isn't doing something. They will do what they need to do based on the information they have at their disposal, whether it be them personally or someone coming to them.
The idea of this protection is to make sure people will come forward freely, knowing they won't find themselves in the bog and the maze of the court system. The vast majority of folks don't want to go to court. They don't. I don't know anybody, other than a lawyer or a judge, who actually wants to go to court, ever. If you're going to court, it's not a good thing. You're going because you're a complainant or a defendant, so you're either trying to win something or you're trying to defend against something that's happening to you. If it goes to court, it means the fight is on. If you don't go to court, the employer has relented and said, “You know, we shouldn't have done what we did. We apologize for that and we back away.”
If you're in court, they're not about to lie down in front of the court and say mea culpa, mea culpa. They're not going to lie down. They're going to go to the court with their boots on and say, let's take on the fight, which in the business is called the judicial chill. There are ways to get employees not to go to court. There are ways to make sure you don't go to court. Usually it's about dragging it for as long as you humanly possibly can, costing the other side a small fortune, and backing away.
The fact is we've heard there aren't that many instances where this actually goes to court. I know Ms. Adair said there were none, but she may just be talking about this particular case of food safety. There may be other instances across the land where it did happen. The fact that there aren't reference materials where you can point to hundreds of instances tells me either that things happen in a way that everybody's really nice to one another and accepts people when they complain—and I say that with my tongue firmly planted in my cheek because we all know that's not true. The court system clearly affords the protection, but it doesn't make people feel comfortable enough to actually use it, otherwise we would see them go forward knowing they have the full protection of the court system.
The standard is too high. At the end of the day, it is a court process where you need to have enough information, enough evidence—not even information, but enough evidence—for which the standard is higher to get a conviction. This is a way to mitigate that issue: by saying the standard of the court system, appropriate as it is, should be left alone. This is about saying the reality of workplace employment law is a much different standard from the standard of criminal court proceedings. That's why this should be included.
Clearly, as my colleague Madame Brosseau said, that's why we feel very strongly about this particular piece. We need to understand the realities of what people face, not the wonderful intents of what the Criminal Code says is your protection. That's the reason to do this. If we intend to actually make things better, this is a way to potentially do that, in our view. It isn't a way to get in the way, to make it cumbersome, or to slow the process down. This is a way to try to enhance the process so that people will feel free to come forward without feeling there's retribution, and without having the standard of saying, “Well, there was retribution and now I have to go to court to prove it”, which makes it immensely difficult for folks in general at any particular time.
I would hope my friends across the way would think twice about it. I haven't really asked a question. I don't really need any clarification from them. They're free to offer it, obviously. I would never suggest you shouldn't. I've simply stated what we believe is the need to have it done.
The other side may want to ask a question of you, but clearly, with the greatest of respect to all three of you, you don't get an opportunity to vote. I'm really looking at the other side, albeit I am addressing you. I'm looking at the other side for their vote, and through you. I appreciate, by the way, the work you've done on this bill, in the sense of laying it out.
As you can see, we have a lot more yeas than we do amendments, to the scope I think of about ten or twenty to one. They're all positive, by the way. There are things you've done that we're trying to enhance, not actually take away. If you'll notice, there really isn't anything here that takes away something you've done. It's to add to it and hopefully make it a better piece of legislation.
I look to the other side to see if we've maybe corralled a vote or two. We only need one; two would be wonderful; all of them would be even better.
Thank you, Chair.
