Information & Ethics Committee on Nov. 21st, 2024

[Matthew Green, NDP, Hamilton Centre, ON]

I'm sorry. If there are staff within the agency who are acting as whistle-blowers—being defined as staff who go public with information, not internally—are there ever instances, in your opinion, when staff from the CRA have the right to disclose to the media publicly in the absence of the internal mechanism?

[Bob Hamilton]

I would differentiate two things.

One, sometimes we do speak publicly, not about a problem within the agency but about what's happening, in a factual type of technical briefing. We can have those, but it tends to be controlled, if I can put it that way, so—

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Hamilton, I want to be direct, and sometimes I don't ask questions in direct ways, maybe.

In the context of this, we're talking about The Fifth Estate investigation where staff—I don't know which level of staff—have disclosed to the media. We're now getting reports that there is an investigation. You suggested, sir, in the previous round of testimony that it could include retaliation up to termination.

I'm asking you, as the commissioner, under what circumstances it would be ethically and legally allowed, under the act, to have protected disclosure.

[Bob Hamilton]

I believe the act says you can disclose to the Public Sector Integrity Commissioner, but I am not a lawyer. I don't have the act in front of me. In those circumstances—

[Matthew Green, NDP, Hamilton Centre, ON]

I'll share with you that, as a labour guy and as the labour critic for our party, looking at the PSDPA, disclosure can be made to the media in cases where there is not sufficient time to follow through on a regular internal process. It can be to the media, but obviously there needs to be a serious breach of law or “an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.” Of course, they would want to get internal union advice on that.

However, the point we're trying to make here is that, from time to time, when there are systems failures that are not about disclosing individual cases or disaggregated information about privacy matters of individual citizens but rather about aggregated cases of systemic failures, would you not agree that there is, in some instances, an ethical rationale for going public?

[Bob Hamilton]

I suppose in theory there could be something where you've exhausted all of your opportunities—

[Matthew Green, NDP, Hamilton Centre, ON]

Okay.

I'll give you one other example in which their disclosure would be protected. I asked you earlier, and I'll let you close with the question that I asked you at the end, which was, to refresh your memory, this: What do you have to say to those people who might be feeling like they're being investigated now for being whistle-blowers to the media and, as you testified, could be facing termination?

I want to put to you that there is another example in which they could be protected, and that is in the instance of a public parliamentary hearing. In theory, I could invite, publicly, all the whistle-blowers to make anonymous submissions to this committee, which, in theory—based on my reading, although I'm not a lawyer and they would probably want to talk to the union—could protect them under the act.

Would you agree that's a possibility here, given the parliamentary privileges extended by Parliament?

[Bob Hamilton]

I don't have a particular comment on the parliamentary privilege and what's in or out.

What I would say, and what I would say to our employees, is that if they thought they saw something going wrong in the agency that they wanted to talk about, I would point them to the avenues that we have, which are the three that I've mentioned, and if they were frustrated in that, I would like somebody to come and talk to me.

[Matthew Green, NDP, Hamilton Centre, ON]

In the event that they don't, what's the consequence?

[Bob Hamilton]

In the event that they don't what?

[Matthew Green, NDP, Hamilton Centre, ON]

In the event that they don't go through the internal process and they go public to the media and they're under investigation, what's the consequence?

[Bob Hamilton]

That would depend on what the action was, because it could be relatively minor, or it could be major. It could be disclosing taxpayer information. It could be something like talking about things that we don't—

[Matthew Green, NDP, Hamilton Centre, ON]

Hypothetically, what would talking to The Fifth Estate about major privacy breaches to the tune of 31,000 different files look like in terms of retaliation within the whistle-blower act?

[Bob Hamilton]

Again, it's not so much related to it being 31,000 files. What it's really about is this: What was the action that was taken by the employee? How serious a violation of something was that? We would have to look at that.

[Matthew Green, NDP, Hamilton Centre, ON]

I am out of time, but I did commit to you that I'd give you the opportunity to answer. That was the six minutes that I had.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Green.

We will now have a five-minute round.

Mr. Chambers, go ahead.

[Adam Chambers, Conservative, Simcoe North, ON]

Thank you, Mr. Chair.

I know my colleague, Mr. Green, is not a lawyer, but he plays a good one on TV sometimes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

[Adam Chambers, Conservative, Simcoe North, ON]

Mrs. Galarneau, I'm just a little confused about the timeline. Is it that the agency was unaware of the totality of the privacy breaches when you were working through the backlog, or did you know the number and choose not to report it?

[Sophie Galarneau]

First of all, I want to say that there was no nefarious intent here to hide any information, nor was there an intention to delay any kind of reporting. I think that's an important piece to put forth.

[Adam Chambers, Conservative, Simcoe North, ON]

I understand. The question is, were you aware? It's one thing to not know that there were 31,000, but it's another to be aware that there are 31,000 and not report.

[Bob Hamilton]

Maybe Marc could respond.

[Adam Chambers, Conservative, Simcoe North, ON]

Mr. Lemieux.

[Marc Lemieux]

We were aware that we had thousands of those cases. It was reported in the OAG report. At that time, the report was saying that in July 2022, we had 23,000 of them for $131 million. That was information we gave to the OAG that was in the report.

I came to committee in February, and I said that we were at 26,000 at that time. We were continuing to find those cases. It takes a long time. We have to validate everything. Our intent was to report on those, but our priority was to deal with these. It was never our intention not to disclose those. We had to find a mechanism to do it.

What I can assure you is that we really reported on—

[Adam Chambers, Conservative, Simcoe North, ON]

I'm sorry, my time is very limited.