Government Operations Committee on Feb. 9th, 2017

[David Hutton]

I think one of the things you need to do is to make it dangerous to take reprisals, and we're not even close to that. Other jurisdictions do that. Other jurisdictions allow for injunctions to be issued very quickly to put a whistle-blower back in his job and to prevent any further action against him.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Which jurisdiction do you know?

[David Hutton]

Ireland would be a good one. There are a number of countries that have excellent laws that are much better than ours. The law would also establish personal liability for taking reprisals against someone, so all kinds of bad things could happen to the people who take the reprisals. Of course, the reverse onus is a given. I think the fundamental strategy here is that once a person is identified as a whistle-blower who is trying to protect the public interest, then you just ring-fence them, and anyone who goes against them does so at their severe peril.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Yazbeck, you've touched a bit on the unions helping their employees, but in your experience how do they interact with PSIC and the employee who has been affected. Is that working well?

[David Yazbeck]

Do you mean in the course of an investigation or a complaint, or just generally?

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Yes, in the course of a complaint, if an employee decides to move forward with whistle-blowing on a particular department, is the union well-equipped? Are they well-trained to coach them on how to move forward with that?

[David Yazbeck]

In some cases, yes. Unions have a duty to represent and they've taken upon themselves to learn about that, so I've seen them provide effective representation for complainants. Oftentimes when the case becomes too complicated or is difficult, then someone like me will be retained by the union. I'm essentially representing the individual at the behest of the union and we try to be as effective as we can.

However, at the end of the day, whether it's a union representative representing the individual or me, we still experience the same sorts of difficulties with the fairness of the investigative process, difficulties with how investigators approach allegations of reprisal, how seriously they take them, and the standard they use to assess whether to go to the tribunal or not. Those are all matters that are still in dispute, in my view, and will ultimately be resolved by the federal courts.

[The Chair, Conservative, Tom Lukiwski]

Mr. McCauley, you have seven minutes, please.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks. It's very interesting.

Mr. Hutton, you mentioned other jurisdictions that do a better job. We don't have a lot of time and you mentioned you were going to provide us with other witness names. Could you provide us those jurisdictions and what you like about their whistle-blowers when you provide those names?

[David Hutton]

Surely, and when—

[Kelly McCauley, Conservative, Edmonton West, AB]

No, I'm just going to ask something else. Sorry, I have so many other things, but when you send in the witness list, can you send us that?

There's a great quote here from Mr. Cutler from an earlier interview with Maclean's, “If experience tells us anything, it's that accountability measures are only attractive to parties in opposition.” That's very good.

I just want to ask a couple of quick questions, gentlemen. We were talking earlier about the Super Hornet procurement and that the government has gone and muzzled an unprecedented 140 people for life. We haven't got a firm answer on whether they're protected by the whistle-blower legislation. I don't think they are, from looking at some of the.... I want to get your feedback on what you think about something like this. How can taxpayers be protected and, more importantly, how can these people be protected? We've heard very clearly that there's almost a culture of intimidation with the bureaucrats. How do we protect these people and what should we do?

[David Hutton]

I'll respond initially.

The issue here is secrecy and keeping information hidden. One thing that is very interesting about the PSDPA is the extraordinary lengths it goes to make sure that nothing will ever come out of the allegations that whistle-blowers make. That information is buried forever, and no one can ever get at it. As for the criminalization of whistle-blowing, it's the same idea. Often the strong wish of the bureaucracy is just to bury some information and make sure it can never come out.

Laws like this ought to be written so that is simply not possible.

[Kelly McCauley, Conservative, Edmonton West, AB]

Have you ever encountered people who have been forced by law to take issues to the grave?

[Allan Cutler]

I have dealt with a person at National Defence who was in the process of exposing a vast problem, which I think is still there. What we needed were the documents and we had asked for them, and then just as we were going to get the documents, suddenly they became covered by national security, which they weren't before.

We've never been able to pursue it and prove it, and because it's now a matter of national security, you can't get in the door.

[Kelly McCauley, Conservative, Edmonton West, AB]

This is about security, which I understand, but also purchase pricing and procurement.

[Allan Cutler]

Yes, so if there's wrongdoing, you can't uncover it easily.

[Kelly McCauley, Conservative, Edmonton West, AB]

It's almost a double whammy. Taxpayers aren't protected, but more importantly, the public servants aren't protected.

[David Yazbeck]

I have a response to that as well. The Canadian Standards Association, which is now the CSA Group, recently published a guideline on whistle-blowing. Both Mr. Hutton and I were part of the working group that put that together. One of the chief recommendations for any employer is that you need to create a culture of speaking up, a culture that allows people to feel free to speak up. When you see situations like that and hear about what we're talking about.... Have we over the last 11 years created that kind of culture in the federal public service? No, no, it's not working.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Cutler, in your interview with Maclean's, you talked about five ideas you had for helping whistle-blowers. We don't have time to discuss those five—

[Allan Cutler]

I don't even remember the article.

[Voices]

Oh, oh!

[Kelly McCauley, Conservative, Edmonton West, AB]

I'll send it to you and maybe you can provide us those five ideas.

[Allan Cutler]

What year was it?

[Kelly McCauley, Conservative, Edmonton West, AB]

It was from October of 2013. I'll send it to you.

We were talking earlier about Phoenix and all the problems we've had. We've done a lot of ATIP stuff and we've seen stuff come out in January where the department was aware of it. Right in black and white, it says, “Clear the backlog”. When we asked about it, we heard, “Oh, there is no such thing.” We saw other ATIP reports saying that 0% of the backlog had been cleared, but they went ahead and caused all these problems with Phoenix.

Mr. Hutton, you mention it on your website. What could we have done? It had been brought up in committee. PSAC brought it up. It had been brought up several times. How much more could have been done? What systematically is set up such that this information is getting quashed and we're still making these damaging decisions?

[David Hutton]

It's very simple. Phoenix is a classic example of what can happen when there's a serious problem that's widely known, but everyone is terrified to talk about it.

I believe that there were very serious problems in the original demonstration project, which claimed to be such a wonderful success. That was years ago. It did not have all the functions it was supposed to have—