Bill C-2 (39th Parliament, 1st Session) Committee on May 10th, 2006

[The Chair, Conservative, David Tilson]

We will reconvene, ladies and gentlemen.

Good afternoon, Mr. Cutler. Some of us have met you; some of us have heard of you. So I'm going to let you introduce yourself, and not cut down on your presentation. You'll have a few minutes to make some comments, and then there'll be questions from the committee.

Monsieur Petit, do you have a point of order?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chairman, it's stated in the document we have here that Joanna Gualtieri would testify until 4:50 p.m. However, currently...

[The Chair, Conservative, David Tilson]

We're going from 4:10 to 4:15. We're ten minutes behind schedule. You're absolutely right. We're going to try to keep moving.

Mr. Cutler.

We're already behind schedule, Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That's not what we meant?

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Ms. Gualtieri was supposed to finish at 4:10. That's in the notice of meeting.

[The Chair, Conservative, David Tilson]

I don't want to start arguing about the times here.

Mr. Cutler, please proceed. Thank you.

[Allan Cutler, As an Individual]

Thank you, Mr. Chairman.

I'm not going to go into a long history of my experience. Suffice it to say that Joanna and I have talked many times. We have a very similar experience, and we know the isolation. We both bear the battle scars, even though you don't visibly see them.

One of the things I'd like to state is that I'm also here on behalf of the Civil Liberties Association. I'm a member of that association, and my comments have been worked out with them as well. So that's where I'm going to.

I'd like to thank you. I'd like to thank all members for hearing us and letting us speak once more on an issue that is extremely passionate and personal to us, and one we can't walk away from. We didn't originally, and we still can't.

I'd like to comment on Bill C-11, though, which is the precursor to this. I am on record as saying Bill C-11 is fatally and fundamentally flawed. And I fully believe that.

The predecessor to this committee tried extremely hard to create a good bill, but from a whistle-blower's perspective they just were not able to. But the attempts were made, and for that we all thank you.

When I read the bill--and I know Joanna does the same--I read it from the perspective of whether I would have been protected. And Bill C-11 did not answer that. There were a number of questions that weren't there.

The second question when I read this bill was whether the changes are an improvement. Bill C-2 contains improvements, but there are still important flaws that need to be addressed.

Two of my objections to Bill C-11 have not been addressed in this amendment at all. The first is that the bill--and this is critical from a whistle-blower's viewpoint--still leaves the burden of proof for reprisals on the whistle-blower. All management really has to do is say that the cases are different, and the whistle-blower is the one who has to prove that the two situations are linked--the whistle-blowing incident and the reprisal. There is no element of timeliness in the bill that says that when the time period is very close together management must accept the responsibility and the burden of proof shifts to management. That is still a fatal flaw in this bill, in my opinion.

The second objection--and this bill is not designed to address it--is that this bill only covers federal employees and people in work related to the government. It doesn't cover all Canadian citizens.

Think for a moment: if Enron had been a Canadian company, this bill would not have protected anybody or helped anybody to come forward and let them know what was going on in Enron. There's no protection. In fact, the Sarbanes-Oxley Act of 2002, which is the U.S. bill, is the main protection for whistle-blowers in Canada outside of the federal government. So we're protected by U.S. law, because there are no real Canadian laws that protect us.

With Bill C-11, I was on record as saying that no law is better than a bad law. And in my opinion, Bill C-11 was a bad law.

With the changes I've read in Bill C-2, it's far from perfect. I'm not going to give it a ringing endorsement, but I will give it a conditional pass. It certainly has a lot of improvements.

My background is in negotiation, and that is coming to joint resolutions. The conciliation approach in this bill is exactly the type of conflict resolution I'm familiar with, which I like, I enjoy, and which didn't exist in Bill C-11. That, to me, is a big step forward, to be able to try to reconcile situations and not let them get out of hand.

Litigation does have its place, but in my opinion it's the last recourse, not the first option. But if everything fails, the whistle-blower should still have the right to litigation.

I'm certain that Joanna would be able to say exactly the same thing, that she's been contacted and she's aware of a number of whistle-blowing incidents in the federal government right this minute. Some I have information on, some I've just been talked to on, and some I've been told about in the past.

This is systemic in large organizations. A large organization will always have problems, and almost all of these problems are what would be typified by either systemic problems or management abuse.

They're not political problems. They only become political problems if they're not addressed early enough, so if you have good legislation and you have the whistle-blowers coming forward, you will solve a lot of problems for whatever party is in power. It will help everybody.

I have read in the paper--I'm certain everybody has--that trust in the government is considered rather low. It needs to be restored.

Trust becomes a critical issue for the integrity commissioner. If this individual--male, female--is not trusted, this office will not work. Whistle-blowers need to trust to go to anybody else. They are isolated; they're being abused; they don't know where to turn or who to turn to. They need somebody they trust, and if trust does not surface very strongly, it just won't work.

But the ethics need to be addressed, too. In that regard, there is a clause in Bill C-11, clause 6, that was not changed in this bill, and that I would like to ask you to delete and change. The clause says that every government department will create its own code of ethics.

Are some employees of some departments more or less ethical than others? Why do they need a different code of ethics? Why is one code of ethics created by Treasury Board not good for all? Why is it that everybody should...?

To me, it's a make-work project. It's totally unnecessary. You only need one rule. This particular statement was in Bill C-11. It has not been addressed in Bill C-2; my request would be to have it changed so that you have only one code for the full government.

I have some other observations on the whistle-blowing section of Bill C-2, but before that I want to address a couple of other sections that are very near and dear to my heart.

Part 4 deals with the administrative oversight and accountability. To me, it is an absolutely excellent addition to make the deputy minister the accounting officer of a department and responsible for measures taken, including measures to maintain effective systems of internal control. I think making the person in charge at the top responsible and accountable in law, not just in policy, for doing the job right is an absolutely excellent set of recommendations.

The other one I have deals with the procurement and contracting function. My specialty is procurement. The procurement auditor is a good initiative; however, I would like to ask you to consider broadening it to a position similar to that of the Auditor General, and allowing this particular individual to audit the procurement practices in all government agencies and crown corporations.

There are inadvertent abuses and lack of knowledge all over the place. There are problems for a whole stack of reasons. This individual should be able to examine all contracting that involves government funds, not just the mainstream departments; this reads for just the mainstream departments of the federal government, so I would ask you to at least consider broadening the mandate of this individual, and, if necessary, making that individual an officer of Parliament--selected by Parliament, and reporting to Parliament. I would have no objection to that.

We'll go to Bill C-2, because I've said the part I wanted to on Bill C-11.

I would like to have in the preamble to Bill C-2 a statement to the effect that public servants have an obligation to report wrongdoing when in the public interest. If that's the purpose of the bill, then put what the purpose is right up front, because when I read the preamble, I don't get a sense of the purpose of the bill. This is just a statement of fact.

I'm going to read just some of the points I have. I'm not going to read everything. I've asked the clerk to get them translated so they can be passed out to everybody at a later date, but I'll read them--

[The Chair, Conservative, David Tilson]

Mr. Cutler, I just want to remind you that if you're going to allow time for questions--

[Allan Cutler]

Oh, okay, then--

[The Chair, Conservative, David Tilson]

There'll be a limit, but you can proceed for a couple more minutes.

[Allan Cutler]

I'll only take two more minutes then.

On page 128, proposed subsection 19(2), 60 days is the time period. I think you should allow one year--a good long time for the whistle-blower to realize what's going on.

In proposed section 20.3, the words used by the legal people who drafted this are “as soon as possible”, which my training says is an absolutely meaningless phrase. It can be anything you want. So I would like to recommend that be changed to “15 days”. Put a time period on it.

I believe in an open government--openness there. There are two comments that I'll make. One is on where it says that the hearing can be held in camera at the request of either party. I would state that it should be “only if agreed to by both parties”. My experience is that one party--generally the departments concerned--will request it all the time and try to make a case for it all the time, rather than “it has to be agreed to by both parties”.

The final comment I'll make.... I'm not talking about the $1,000, which is a meaningless issue in terms of a reward to anybody, because $800 as a bilingual bonus is nothing too. On the $3,000 given to a whistle-blower for a legal defence, you might get a lawyer for two days if you're lucky. The main government departments will allow $25,000 to an employee who is threatened. That's within the rules, regulations, and mandates right this minute. Why not give the whistle-blower $30,000 and let a lawyer help him with his whistle-blowing defence?

With that I'll be quiet. You'll get the rest as a handout anyway.

[The Chair, Conservative, David Tilson]

If you have some comments, sir, you can provide them to the clerk, who will distribute them.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Cutler, for being here. I think all of us are very aware of the struggles you've had, and appreciate your forthright way of addressing them in attempting to assist government, frankly, to work better in the public interest.

I appreciated your remark about the conciliation approach. I think if we look at governance as a system--you mentioned your dispute resolution and negotiation background--you need to have a number of things across a range of government and negotiation dispute resolution. The first and most important thing--to save everybody a lot of time, money, and heartache--is to have an internal system that is open, accountable, and works properly, where problems are illuminated without whistle-blowing, in the sense of someone having to step outside the system.

No system will be perfect, but if you can lay the groundwork effectively for that management system you will shortcut a lot of problems. You'll make sure that people fully understand each other. You won't have an employee frustrated in thinking something is wrong, if they don't perhaps have full knowledge because the cohesion of government may leave some issues out of their knowledge, which had they known they might have felt better about. But it leads to better governance. Then you should always, in a system of dispute resolution, have a conciliation mediation approach, and then a determination--a fact-finding process, whether it's a tribunal, a court, or whatever. But I just want to get your reflection on that.

We're dealing with the downstream stuff, on how to solve it once there's a problem and someone's been pushed to a point of having to blow the whistle. I really think the upstream aspects need a lot of work as well.

I guess if you have a healthy internal system of management you will have processes that should be exhausted first, before someone goes immediately outside, so they might find out more information and not expose themselves to worry or reprisal. I guess when you do step outside, I see in this act--and I appreciate that it's repeated a number of times--that the whistle-blower be in good faith. That to me is sort of a bedrock condition.

I wonder if you might comment on those two issues of internal management structures that might be improved, as well as good faith when one does step outside.

[Allan Cutler]

An ethical government is the best way to go. If you have an ethical government, you will have a lot fewer problems, and that goes for management on down. The problem that faces everybody is that government is a huge organization and there are always going to be pockets.

The whistle-blower must have the prerogative to decide whether to go to management or to go elsewhere. Going to management doesn't always work, believe me. It doesn't always work. You can talk to Ms. Gualtieri. She knows it doesn't work too. You can't always go to management. You must have the decision whether you do or not.

The experience is that over 90% of whistle-blowers will have tried internal routes first and have got frustrated and been stymied. They do try, but they have to have the ability to choose whether they're going to trust management, and that word “trust” is a big word.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Okay. Can you help us with recommendations for internal management processes that are trustworthy?

[Allan Cutler]

I'll give you a point-blank recommendation for a management situation. It is that you have one set of rules, one set of ethical rules, a code of conduct, from the politicians to the ministerial staff to the civil servants all the way down, all the way through the crown corporations. If I can accept hockey tickets, they can accept hockey tickets. Nobody should be saying, “I am more ethical than you are; therefore I can be trusted more than you are.” It's the message that's being sent, actually.

So if you're asking me for a recommendation, it would be one rule that goes through a complete organization and it's the same rule for everybody. By the way, the Saskatchewan crown corporations are looking at doing exactly that.

[The Chair, Conservative, David Tilson]

You have two minutes, Ms. Jennings. Is that possible?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

It's going to be real stretch of my abilities.

Mr. Cutler, I have to say it's a pleasure to see you again. I had the honour and privilege of listening to your testimony before the public accounts committee. I found you to be a credible witness, an honest witness, a witness who carefully weighed his words. Therefore I simply want to say that your recommendations are certainly something I will look at seriously and I will possibly bring forth amendments to the legislation in order to achieve what you're proposing.

[Allan Cutler]

I would appreciate it.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I would give the little bit of my time, the one minute left, to Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Now that's really going to be a challenge. Congratulations, Madam Jennings.

Mr. Cutler, you had mentioned that Bill C-2 still leaves the burden in terms of onus of proof on the whistle-blower. You've heard the interchange between Ms. Gaultieri and Mr. Poilievre with respect to the public sector integrity commissioner having the power to enforce the compliance. Are you satisfied with the...? If you could turn the clock back--and I recall when you appeared before the public accounts committee, the question was the system broke down at a point when you expected it to intervene--would this intervention with this architecture have made a difference? Would you like to comment on that?

[Allan Cutler]

It would have made a difference, but the one issue that I have addressed would still have been there, because that is exactly what happened to me. One day I was reporting the problem and the next day I was being told I was being fired and the management said the two cases were totally unrelated.

To my knowledge, that particular problem has been established as a precedent in practice--because as soon as you've agreed to it, it's a precedent. I don't see that particular situation having been addressed, and it concerns me.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Cutler, welcome and thank you for telling us about your experience, your bad experience.

Ms. Gualtieri, who preceded you, told us a lot about the legislation in effect in the United States and other countries. You've told us about that as well. Since the ultimate purpose of this kind of legislation is to restore public's trust in the political class, I'd like to know whether you think the public puts more trust in its political class in countries where such legislation appears to be superior to Bill C-2. Do Americans believe that their parliamentarians are honest people? Do they vote more in their elections? Is there a risk this kind of purpose may be undermined with Bill C-2?

[Allan Cutler]

I would not think the Americans have more confidence in their politicians because of their experience with their politicians. Their politicians are very isolated from their public, as you probably know, because of the vast populations. You're lucky if you ever meet your senator or House representative. It's a very different type of issue.

My understanding—and I'm not an expert in law or an expert in foreign things--is that the Scandinavian countries were the initiators of the whole concept. They're further ahead; their public is much more confident in their government.