Evidence of meeting #5 for Bill C-2 (39th Parliament, 1st Session) in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
Director, Federal Accountability Initiative for Reform (FAIR)
Very soon after starting with the Department of Foreign Affairs I ascertained very quickly.... I started in February of 1992, and I started to speak out after my trip to Tokyo on the gross abuses against the public purse in Tokyo. I went there in July of 1992.
NDP
Paul Dewar NDP Ottawa Centre, ON
And after you blew the whistle, so to speak, what exactly happened with your case in terms of the court proceedings? I'd like to know what the status of your case is at present, vis-à-vis the courts, as much as you can let us in on that, and any costs that you've incurred.
Director, Federal Accountability Initiative for Reform (FAIR)
I spent years working within the system. I felt that was simply what one does. In fact, I didn't realize how much they wanted to get rid of me. I spent years trying to do my job. And this must be understood; this is the reality for so many whistle-blowers: they are merely doing their job. So from 1992 through to 1996 I went to see Jim Judd, who was the ADM. I wrote Lloyd Axworthy in 1997. Nobody answered me; nobody dealt with the substance of the complaints, neither the wrongdoing nor the retaliation. Finally, I was in very poor health as a result of this, and I commenced a legal action in 1998. We are entering the ninth year of the legal action, and I am currently in seven weeks of depositions. It's a long, very costly process.
As for costs, this is why I caution you. The government is very powerful. In one motion alone they asked me for $380,000 in costs.
So it's a dangerous undertaking for whistle-blowers.
NDP
Paul Dewar NDP Ottawa Centre, ON
Just for the record, they actually asked you for $378,000 for the costs that they incurred in dealing with your case? Is that how it worked?
Director, Federal Accountability Initiative for Reform (FAIR)
It's not in dealing with my case. They wanted that on just one interlocutory motion; for a one-day proceeding the government sought that.
NDP
Paul Dewar NDP Ottawa Centre, ON
When I look at your submission, I look at some of the analyses you've done to date, understanding there's more to follow. You mentioned in here some concerns in terms of oversight, and you have mentioned that you would like to make sure there is access to the courts.
Can you just expand on that a little bit, on your concerns about how it currently is being proposed and then your concerns about access to the courts?
Director, Federal Accountability Initiative for Reform (FAIR)
I think there's a tremendous amount of goodwill on the part of the government in establishing a special-purpose tribunal. That in and of itself may not be a bad thing. History shows that tribunals can become politicized. They've had a terrible experience of this in the United States. And of course we've had a bad experience, particularly in the last few years with the Human Rights Commission and other tribunals.
The bottom line is that the sunlight shines brightest in open ports. Why are we saying to our public servants that they can't have that right, which is the right that private citizens enjoy?
In other words, this right should be additive and not replace what is otherwise your common law right.
NDP
Paul Dewar NDP Ottawa Centre, ON
In other words, whistle-blowers have the right to seek remedy through the court system as well as in any other systems that are set up or present.
How is my time?
Paul Dewar NDP Ottawa Centre, ON
Good.
We touched on the $1,000. I think it's a straightforward consensus here that no one actually asked for this, so I'm not going to deal with it because I don't think it's a serious part of the bill. But the interim measures allowing the public sector workers, in particular, to access a neutral third party in the interim, so that when you're in that midst, where you were in 1992 to 1996.... Because you're quite right, the whistle-blowers I've talked to--to a person--talk about the isolation.
How do you think that could be dealt with for someone who blows the whistle? You're brave enough to come forward. How do you think the relationship that the whistle-blower has with their work environment could be remedied, or what kinds of supports could be put in place there?
Director, Federal Accountability Initiative for Reform (FAIR)
That's a very good point, Mr. Dewar. I think we have to demonstrate that when the wrongdoer retaliates there will be swift and immediate action against the wrongdoer. That will send the message that harassment is not the tried and true response against a whistle-blower. The isolation is profoundly troubling. I can tell you that what was most difficult for me was not being able to make a meaningful contribution as a public servant.
And it will happen. We have to really send a strong signal that what has happened up to this point will not be tolerated in this country.
Thank you.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Okay, just call me Pierre. We're good enough friends by now, aren't we, Chair?
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Joanna, great to have you here today.
I'd like to clarify a few points that I think need to be said.
First of all, the tribunal will be composed of Federal Court and provincial Superior Court judges. So this is not just a random group of the Prime Minister's hand-picked favourites. This is a group of judges. And those people who believe in the independence of the judiciary must also believe automatically in the independence of this tribunal, because it is composed of the judiciary.
Furthermore, neither the Prime Minister nor the government will have the ability to decide which judges will sit on which cases. That will be selected by the head of the tribunal, who himself is a judge. So, again, if we believe in the independence of the judiciary, we must necessarily believe in the independence of this tribunal.
Secondly, the office of the commissioner will have order power. It will have the power to sanction and it will have the power to remedy. Those are two powers the office did not have under Bill C-11 but will have under the Accountability Act, because the office of the commissioner includes the tribunal, which has those powers.
I have the sections here right now: proposed section 21.7 gives the power to remedy; and proposed section 21.8 gives the power to discipline, for lack of a better word, the bully. The individual who is mistreating whistle-blowers can be disciplined directly by the tribunal in a totally apolitical proceeding separate from the political and the executive arms of government. All of those powers are given to an independent group of judges.
Those powers do not exist under the previous Bill C-11, but they do exist under this accountability act. I wonder if you agree that giving this power of enforcement to sanction and to remedy to an independent group of judges is an improvement over the previous Liberal bill, which left those powers in the hands of politicians and senior bureaucrats.
Director, Federal Accountability Initiative for Reform (FAIR)
First of all, I'd like to thank you. I thank you for the inclusive approach that you've taken. It has been most helpful, and I tell you that many whistle-blowers are very, very grateful for it.
Director, Federal Accountability Initiative for Reform (FAIR)
That's the first point I'd like to make.
I agree with your point about the tribunal being made up of a group of judges. The tribunal is comprised of judges, and of course we do respect the independence of the judiciary. Those judges, however, are appointed by the Prime Minister and he does have the authority to select who those judges are. Possibly an improvement for the tribunal is to have an all-party committee vet or question those judges before they are appointed. That is the same procedure that has been adopted for the appointment of the commissioner.
Regarding the corrective order powers and the remedial powers, I agree with you that the tribunal does have those powers. It is the commissioner who does not have those powers. Given that most whistle-blowers have to commence with the commissioner, that is why I refer to it as an onerous two-step process, because the commissioner can't do it, though of course the tribunal can.
So, yes, these are improvements, Pierre, but I still believe at the end of the day--and I think whistle-blowers will unanimously tell you this--you should, please, leave them the right, and leave the courts with their residual powers to hear these cases, as well.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
I understand that point. You've made it very eloquently and very consistently. What I would point out is that these judges who whistle-blowers would face in courts are the same kinds of judges they would face in a tribunal setting. These tribunals will be held out in the open for public scrutiny. People will be able to see whether they're fair or not. The same judges you want whistle-blowers to have access to in courts are going to be made available to them in the tribunals. It's a fairly revolutionary invention of this bill to give that kind of order power over public decisions inside the government to a group of judges on a tribunal, as opposed to having it in the hands of the political and bureaucratic bosses. I think it's a very serious step forward.
On the issue of access to information, we should clarify that no documents whatsoever will be exempt from access to information under this bill. All documents, every single document related to a prospective scandal, are accessible at the department. So you can make your ATI request to the department, just as you would have been able to without the presence of this bill. We have removed all exemptions that existed under the previous Bill C-11. Exemptions only exist for the commissioner's office during an investigation so that the investigation is not interrupted by constant ATIs and so the identities of the whistle-blowers are essentially protected in order to defend against reprisals.
Do you believe honestly that those kinds of exemptions to protect the identity of the whistle-blower and to protect the integrity of an investigation should not be in the bill?
Director, Federal Accountability Initiative for Reform (FAIR)
No. Let me clarify my position on that. My position is that following the investigation--and I've put this in my presentation, which I've provided--all records must be released to the public. I further advocate that there should be a public registry where people can go and consult them. So it would not be during an investigation; you cannot jeopardize an investigation.
On the anonymity of whistle-blowers, again, I think we have to be cautious about being presumptuous about what whistle-blowers want. In my experience, most whistle-blowers have wanted to declare themselves. Studies have shown that they are often the brightest and the highest qualified in the organization. That should be up to the whistle-blower.
Thank you, Chair.
Conservative
The Chair Conservative David Tilson
You have no time.
Thank you very much, Ms. Gualtieri. That concludes our time this afternoon. I thank you for coming and providing us with your wisdom. Thank you very much.
Director, Federal Accountability Initiative for Reform (FAIR)
Thanks very much.
Conservative
The Chair Conservative David Tilson
The committee will recess for about 30 seconds while we rearrange things.