Thank you.
First, thank you, committee members and Mr. Chair, for having us. I have a few opening comments, and then we will deal with the six election promises regarding the promise of ironclad whistleblower protection.
I think we all can understand that understanding is best acquired through personal experience. Fortunately, most of us will be spared the experience lived by whistle-blowers, but it is precisely this absence of experience that challenges us in understanding what we need to do to provide effective legal protection. I hope that through your deliberations this committee will nonetheless understand that ironclad whistle-blower protection comes not from rhetoric or illusory devices, but rather from locking in fundamental civil and legal rights.
I hope that none of you experiences the retaliation whistle-blowers do; likewise, I hope you don't experience the tragedy that can result when we all remain silent. Twenty years ago, 60,000 Canadians were infected with HIV and hepatitis C while the government secretly debated what to do regarding our tainted blood supply. Thousands of others kept bedside vigils as their loved ones died a long and painful death, while the government covered up. We owe it to them today to ensure that above all else we are guided by simple principles: the public's right to know and an employee's right to tell.
History has given us profiles in courage: Dr. Michele Brill-Edwards, Dr. Pierre Blais, the three veterinarians at Health Canada. All departed from the unspoken conspiracy of silence to alert Health Canada to dangers. Career diplomat Brian McAdam, who is here, and RCMP Corporal Robert Read alerted the Prime Minister about threats to our national security. Linda Merk, who heroically went up to the Supreme Court of Canada, advised about corrupt union bosses. And Allan Cutler, who you will hear from, spoke about the sponsorship scandal.
What they share in common is that their careers were destroyed or detrimentally affected, and that they have faced persecution in our courts by the Department of Justice.
My knowledge regarding whistle-blower rights and protection began when I started at the Department of Foreign Affairs and spoke about extravagance and waste. Multi-million-dollar residences sat vacant while the taxpayers footed the bill for houses more to the diplomats' liking. I alerted senior management and the minister and was stonewalled and my livelihood destroyed.
As a lawyer, I could not ignore the horrific abuses applied against conscientious public servants. We needed a voice, counsel, and information, and that was the beginning of FAIR.
Today, our operations as a non-profit, non-partisan organization are made possible by a growing group of dedicated volunteers, and we are grateful for advisers, including the Honourable David Kilgour, Dr. Gerard Seijts of the Ivey School of Business, and Dr. David Swann, Calgary MLA. Our mission is threefold: to assist whistle-blowers, educate the public about their indispensable role in combating wrongdoing, and provide commentary about effective legislation.
I've learned this: that we are utterly dependent as a society on the flow of reliable insider information to combat wrongdoing that threatens the public interest. There is tremendous goodwill among our citizenry, but governments are more reticent to embrace strong protection.
We are really encouraged by the consultative approach of this new government and are deeply grateful for the openness of Pierre Poilievre, the parliamentary secretary to the President of the Treasury Board. It reflects a substantial change from the previous government, where, for example, Minister Lloyd Axworthy threatened me with libel for daring to say there was anything wrong.
Let us look now at the six components of the election promise. I would refer you as a benchmark to the whistle-blower protection law of the Organization of American States, of which, incidentally, Canada is of course a member. They have ratified the Inter-American Convention Against Corruption. This model should be our model.
The first promise is to give the public service integrity commissioner the power to enforce compliance with the act.
We know that employees remain silent for two reasons: fear of reprisal, and the belief that nothing will change. In order to combat this, the commissioner must have order powers. Unfortunately, Bill C-11 fails. Regarding the wrongdoing, the commissioner can only report to Parliament and make recommendations, and we know that bureaucrats and ministers have ignored officers of Parliament, including the Auditor General and the Information Commissioner.
Regarding whistle-blower protection, the commissioner has no power to grant a remedy, but can refer the matter to a tribunal. This will invariably start a long and onerous process for the whistle-blower, who never has control over his or her case. Rights inherently include the authority to enforce them, but this legislation offers promises whose enforcement is beyond the reprisal victim's control.
By contrast, the ombudsman in the OAS model has such corrective powers and remedial powers. In order to meet this election promise, at the very minimum the bill should provide that the minister or head of an offending department or crown corporation or agency shall take prompt corrective action as recommended by the commissioner.
The second point is to ensure that all Canadians who report government wrongdoing are protected, not just public servants. This is an important point. There's ample and growing precedent to base protection on what information the dissenter is disclosing, rather than on the person's employment context. This reflects the OAS model and the False Claims Act in the United States. To meet this election promise, Bill C-11 should at the very least provide that any time the government retaliates against a citizen who exercises freedom of expression, it violates human rights.
The third point we agree with, and that is the government's inability to exempt crown corporations and other bodies. Our position is clear. No government department, agency, or crown corporation should be exempted. They are all stewards of taxpayers' money.
The fourth point requires the prompt public disclosure of information revealed by the whistle-blower. In this regard, we must say that Bill C-11 fails dismally. It obligates the commissioner to make secret forever all information gathered in the course of the commissioner's investigation. It is also exempt from Access to Information requests. This provision is in fact more draconian than what the Liberal Government proposed. Inexcusable and Orwellian, it turns Bill C-11 into an anti-transparency proposal. Any whistle-blower acting under the law is in fact gagging himself or herself and locking in secrecy exactly when the public has a right to know. The American and OAS models contain anti-gag provisions. Bill C-11 must therefore provide that any information acquired by the commissioner must be accessible under access laws; in fact, we state that reports and materials should be deposited with a public registry.
The fifth point is a very important one. It relates to the whistle-blower's access to courts and the provision of legal counsel. Bill C-11 again is wanting.
The first part relates to the restoration of access to our courts of justice, which the Liberal government stripped away. This was done in 2003 by virtue of the Public Service Modernization Act. As insiders at the Department of Justice and Treasury Board said, it was because the government was embarrassed at being sued by public servants for harassment and abuse of power. Bill C-11 sets up a special-purpose tribunal to deal with whistle-blower cases, but it fails to reinstate the right to sue in court.
Let me be clear. A fair day in court with a history of openness, transparency, due process, public accessibility, and court reporting is the bottom line for the validity of any remedial law. I must say that the net result with Bill C-11 in this regard is that Canadian whistle-blower rights are regressing, and this proposal institutionalizes this retreat.
It's worth noting that in the United States, which has 40 years of history with whistle-blower law and where radical improvements are being made, the whistle-blowers are allowed to walk into court with their heads held high and have jury trials, in which they will be judged by the public, the intended beneficiaries of whistle-blowing.
The other issue is legal representation. It is a cruel delusion if victims cannot afford to enforce their rights. At the very least, whistle-blowers must have the same access to counsel as wrongdoers who have the public purse to defend them. I urge you to invite the Minister of Justice to provide testimony on what steps he has taken to end the abuses being directed at whistle-blowers currently in the courts. The $1,500 for legal advice is wholly inadequate.
The last point, and I'll be very brief, is the establishment of monetary rewards for whistle-blowers. This garnered a lot of debate during the election campaign. I'd like to provide some clarification. Suing for damages should not be confused with monetary rewards. Our position is that reprisal victims must have the right to sue for comprehensive punitive and compensatory damages. The idea is to make available make-whole remedies to heal the scars of retaliation.
The issue of allowing whistle-blowers to take a cut of moneys that are recovered from those who commit fraud against government is another issue. I note that Monsieur Poilievre has said they will look into it, and we support this. I would merely say that society benefits when the business of fighting corruption becomes more profitable than engaging in it.
I'd like to conclude by saying that this committee has a historic opportunity to provide meaningful protection for employees who through their individual acts of courage serve us, the public. How are we to justify giving our first-class public service the second-class rights that Bill C-11 provides? This is not the time for political expedience. The deaths from Walkerton, the blood scandal, and Air India demonstrate powerfully what can result when we fail to promote and protect free speech.
I urge you to invite the testimony of the Government Accountability Project in Washington, D.C. They are the world's leader on both legislation and whistle-blower rights as a fundamental plank in government accountability. This is the time that we should do right and not rush to adhere to arbitrary deadlines, as Canadians are expecting no less.
Thank you, and I look forward to your questions.
