Government Operations Committee on Feb. 9th, 2017

[The Chair, Conservative, Tom Lukiwski]

I don't want to take up too much of the valuable time of our committee witnesses, so I will suspend just for a moment to excuse our witnesses.

Monsieur Bégin and Madame Ferlatte, thank you very much. You are excused.

[Kelly McCauley, Conservative, Edmonton West, AB]

[Technical difficulty—Editor] to get these issues talked about.

It should be a natural matter of discussion, as our previous government regularly undertook with the F-35.

While the debate was heated at times, it was always open, with regular committee meetings, unanimous emergency studies in various committees, and regular debate in the House on the issue. Rather than taking on a statutory review of legislation as requested by Minister Brison, something we could do at any point in the coming session, we should be focusing on matters of immediate concern.

I have four concrete concerns that underpin the tabling of the motion today, and I hope to garner support from all members of the committee on these.

Issue number one is the sole-source contract. We're all here on the OGGO committee—by choice, it is hoped—because we feel a duty to watch over the disbursement of public funds, to ensure that taxpayer dollars are being allocated fairly and responsibly, and to make sure that the procurement projects are receiving the proper oversight and scrutiny for the sake of public servants, Canadian industry, and in our case, the Canadian Forces.

It's difficult to justify a sole-source contract worth billions of dollars as being fiscally responsible. In response to an Order Paper question we submitted to the Minister of Public Works questioning the rationale for a sole-source contract, the minister responded that while we wait for new planes to be procured through a lengthy competition process, the government is exploring an interim option to fill the capability gap in the Canadian Armed Forces requirements for defence supplies or services.

On that point I want to comment on Minister Foote's new mandate letter, which says, “I will expect Cabinet committees and individual ministers to: track and report on the progress of our commitments”. It goes on:

We have also committed to set a higher bar for openness and transparency in government. It is time to shine more light on government to ensure it remains focused on the people it serves. Government and its information should be open by default. If we want Canadians to trust their government, we need a government that trusts Canadians.... Our platform guides our government. Over the course of our four-year mandate, I expect us to deliver on all of our commitments.

One of the commitments is to “Work with the Minister of National Defence and the Minister of Innovation, Science and Economic Development to launch an open and transparent competition to replace the CF-18 fighter aircraft, focusing on options that match Canada’s defence needs.”

Obviously, we've been calling for an open and transparent competition, and the response from the government is that there will be one in five years from now. This contradicts the minister's own mandate letter, which says, “Over the course of our four-year mandate”.

We have a mandate letter demanding openness and transparency. We have a mandate letter saying that over the course of a four-year mandate, of which only two and a half years are left, they expect to deliver on the commitments, one of which is an open and transparent competition that will not be for five years. Therefore, the mandate letter that was issued, I think, just two weeks ago already contradicts the government's policies and workings.

Continuing on the capability gap, which we call the credibility gap, the government's justification for allocating billions of dollars on a sole-source contracted basis has been questioned by members of the military, the media, and military and procurement experts inside and outside the government.

As then Liberal House leader, Dominic LeBlanc, said in 2010, in response to an earlier procurement of jets, there is a “commitment to ensuring that the men and women of the air force have the aircraft they need, but also to do the missions that this Parliament and that the government asks of them, and not simply pursue a particular aircraft for some ideological reason.”

Again, we have the government course contradicting what their own House leader said back in 2010.

I can go further with a quote from Minister Garneau, then Liberal defence critic, who said:

Once the bidders on a contract are evaluated, both in terms of performance requirements and the offsets they are prepared to offer, we are then in a position to select the best aircraft for Canada.... Why are they the best? Why is this the best way of going about it? In one word, it is because it is a competition. By definition, when a competition is held, the best deal is found. Everybody knows that.

I have a couple of other quotes. This is from Minister Garneau again, from March, 2012:

...the government has bungled the CF-18 replacement right from the beginning. Will it now do the right thing, which is: first, define a statement of requirements based on our objectives from a defence and foreign policy point of view; second, hold an open and transparent competition; and third, choose the best aircraft based on performance, cost, industrial benefits and, I need to add, availability? In other words, do what the Liberals did 30 years ago when we chose the CF-18.

This one is from May 2012 by Kevin Lamoureux—odd, I know. It's hard to find him speaking in the House, but here's a comment:

Mr. Speaker, there are many aspects of the budget I could talk about, and many other aspects I could talk about with regard to the 70-plus pieces of legislation.... There is one issue that kind of eats at a lot of Canadians, and that is the issue of credibility. The Prime Minister and the Minister of National Defence have a talked a great deal about the need to replace the F-18, something the Liberal Party agrees with. There a need to replace the F-18. Where we disagree is with the manner in which that has been done. There has been a great deal of deception from the government to Canadians. At some point, it said $9 billion was going to be the cost, and we are finding out that the cost is going to be more than double that.

At least that government had discussed costs, as opposed to hiding them, as we have seen with the Super Hornets.

Mr. Lamoureux continued:

My question to the member is this. How can Canadians believe the numbers the government is purporting to talk about on issues like the deficit, when it has really made a whole mess, and there is evidence to show it misled Canadians on the pricing of the F-35 contract? Why should Canadians believe the budget document is a legitimate document...?

It goes back to our concerns that the Super Hornets haven't been priced and that we've chosen an aircraft before we've even negotiated a price.

This last one is from Honourable John McCallum, recently retired, from May 2012:

The government could have put the F-35 out to tender. In a book coming out today, the former ADM for materiel, Alan Williams, makes a strong case that this F-35 business has been mishandled from day one. He has also indicated that a competitive bidding process would save the taxpayer some billions of dollars.

I'm going to go on about the Super Hornets. It's not a small deal, as we know. These are 18 jets that are going to be flown by our forces, and dismissing this as a matter of “it's only something we're going to do until we get something better” is the wrong course of action. We owe it to Canadians to fully and transparently examine the necessity of the current government's ignoring of the key fairness clause in government contracts regulations.

Issue number two is ministerial responsibility. Earlier, we discussed her mandate letter. One of the main reasons that we, as members, send letters to ministers and move motions calling for emergency meetings on particular topics is that we need answers to questions that only ministers can provide. They are the elected and accountable faces of the departments they lead and the final sign-off for all projects and decisions. For example, we've had six press conferences on the Phoenix pay fiasco, the most recent one just the other day. Minister Foote has been present at exactly zero of them. She's appeared before this committee twice, with only one appearance before a regular meeting; and even then we cannot commit to making any decisions, because she's put her deputy minister in front of the issues.

To date we haven't heard anything from Minister Foote on the sole-source contract. When the previous government was pursuing the F-35 program, our current leader was the Minister of Public Works and Government Services. She regularly appeared before various committees, including this one, to discuss the program.

These jets are going to cost billions of dollars and take years to procure. They're an incredibly complex system, with millions of decisions to be made between two of the largest departments within the Canadian public service. Should anything derail in these discussions, it's up to the same minister who has been silent on shipbuilding, on Phoenix, and now the Super Hornets to take responsibility and explain what went wrong. We're wondering how we can possibly prevent these molehills from becoming mountains if we are not prepared to commit to an adequate oversight and study.

Issue number three is the lack of military experience involved in the manufactured capability gap. Our colleagues on the National Defence portfolio have repeatedly asked who is deciding the capability requirements for the military. Is it the defence staff or the PMO? There's been no response. Then in a November 2016 National Post article we found out that the government has ordered 235 military personnel and public servants to take the details of the fighter jet program to the grave. There are 39 civil servants in Public Works who are forced to sign this agreement, which would permanently bind them to secrecy on the fighter jet capability project.

The former assistant deputy minister of materiel, Alan Williams—the very same Alan Williams whom the Liberals relied heavily on during their calls for a competition for the F-35—has said he's never heard of such agreements. He said, “I've never heard of this type of thing before.... I never required it of my staff. I think if I had, I would have been laughed out of the building.”

The article went on to note that the capability gap—which the defence minister blamed on the previous government—has been questioned by a large number of defence sources. In fact, the article notes that earlier in the year, RCAF commander Lieutenant-General Mike Hood said that the CF-18s could fly until 2025 and potentially beyond. Moreover, as the article noted, “In his appearance before the Commons defence committee, Hood didn’t mention anything about a capability gap.”

Past statements from both CDS Vance and the chief of air staff have confirmed that the RCAF has sufficient numbers to meet its domestic and international obligations until 2025. This is the result of the previous government's investments in the CF-18 life extension program.

Given that the current government has deemed it appropriate to circumvent contract regulations on a questionable capability gap, it would be irresponsible for this committee to take the claim at face value, especially with the impact this would have on precedents. It is our duty to ensure that public dollars are being spent appropriately, efficiently, and in the best interests of Canadians. It's difficult to verify that this is the best deal for Canadians if the core tenet of the deal is being questioned and if government workers are under a lifetime ban on speaking about the deal.

We've also discovered that there was a 2014 memo posted on the DND website for over a year about the excess expense of managing two fleets and saying that the capability gap was non-existent. After being told to remove the memo from the website, DND confirmed that the government officials had decided to keep the memo secret. I didn't see how this could possibly be seen as anything but a naked attempt to hide the facts that contradict what the government has been saying.

Rather than openly addressing the concerns expressed by the public and the opposition when confronted by these facts, the government decided to simply declare the memo secret and have it removed from the DND website, something that no previous government, whether ours or Liberal, has ever done before.

Issue number four is the cost to taxpayers. The fact that the RCAF will already be running 18 Super Hornets is seen by many as putting Boeing at a competitive advantage in any future competition. The RCAF will already be set up to train its pilots on the Super Hornet and be geared toward its supply chain in operational requirements. Running a mixed fleet calls for countless unnecessary costs, making it a considerable factor for officials in upcoming competitions.

The government often tells of—

[The Chair, Conservative, Tom Lukiwski]

Just to let you know, we have approximately five minutes before our next witnesses are scheduled. Obviously the floor is yours and you can speak as long as you wish; however, if there are other speakers, they obviously will have an opportunity as well.

If committee members want to get the next set of witnesses in, I'm just reminding us of where we are from a timeline perspective.

It's back to you, sir.

[Kelly McCauley, Conservative, Edmonton West, AB]

The government often touts the lower immediate price tag of the Super Hornet as a primary reason that it should be sole-sourced and preferred. However, as with most other things on this file, the government has not been clear about what kind of price tag Canadians can expect to pay to fulfill this Liberal campaign promise. Boeing likes to use the old value of $57 million U.S. to buy a Super Hornet; however, Australia recently paid $120 million per plane. The most recent analysis done by Denmark showed that the purchase of fully capable fighter jets was $87 million for an F-35 versus $124 million for an F-18. We recently purchased 40 Super Hornets for a total of $10 billion, or $252 million per plane, well over triple what an F-35 is right now.

Boeing has been lobbying the American government to impose a 20% tax on top of the military sales tax, which would substantially increase the cost of these interim jets. If we're going to get serious about the question of good deals for Canadians, we have to ask why we're willing to buy a plane at double the tax and again why we would commit to a plane before we even start negotiating on price or asking for pricing from any competition.

Coupled with the fact that the Super Hornet is at the end of its life cycle and is basically an obsolete plane right now, I'd like to pose a question. How do these evolving financial realities not change the discussion on whether or not this is the best deal for Canada?

I'm going to quote a retired member of Parliament, because it sums up my argument nicely:

This is obviously costing all of us, members of the Canadian public, the taxpayers, a significant number of dollars. That is what competition is there for. It is to get the best price, to make sure the Canadian taxpayer is getting value for dollar. This party has talked about value for dollar with regard to this issue from the beginning. That is a responsibility the government has chosen to ignore.

He goes on:

The other reason is to make sure we get the best equipment available to us. Never is this more important than when we are talking about military procurement for our men and women in the air force. We want to make sure they have the best tools available. Again, without an active, open, transparent and fair competition, we do not know that.

Later he says:

It is incumbent upon all parliamentarians to make sure we do get value for dollar. It is incumbent upon all parliamentarians to ensure that the process as outlined in Treasury Board guidelines is followed. If that is not followed, then we cannot be sure that we are getting the best price for Canadian taxpayers, and we clearly are not sure.

Now, that former MP was none other than the veteran Liberal defence critic, the Hon. Bryon Wilfert, from a debate on a sole-source contract in 2010.

Taxpayers have so far been kept in the dark about the true cost of the Super Hornet purchase, about the necessity of a sole-source contract worth billions of dollars, and about the long-term impacts on Canadian industry and the military. It's the committee's responsibility to ensure that the rules of transparency, accountability, and fiscal responsibility are kept.

I hope I have your support for this essential study and I hope my colleagues on the other side vote in favour of this study, and for the sake of transparency, not push this discussion and this vote in camera, once again away from the public.

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Thank you, Mr. McCauley.

Procedurally, colleagues, what happens now is I call for speakers, unlimited debate. Mr. Whalen has already indicated he wishes to speak to this. Mr. Weir, you as well.

Again, I remind colleagues that we have approximately two or three minutes before the next scheduled witnesses appear.

Mr. Whalen, the floor is yours.

[Nick Whalen, Liberal, St. John's East, NL]

I move to adjourn debate.

[The Chair, Conservative, Tom Lukiwski]

The motion is in order, colleagues. The motion to adjourn is non-debatable. We will vote immediately.

I have a question to the clerk. Is Mr. Tabbara subbed in?

[A voice]

Yes.

[The Chair, Conservative, Tom Lukiwski]

(Motion agreed to [See Minutes of Proceedings])

We will suspend for a few moments while we ask our next set of witnesses to approach the table.

[The Chair, Conservative, Tom Lukiwski]

Colleagues, we are back in session.

I want to welcome our new witnesses to the table: Mr. Cutler, Mr. Hutton, and Mr. Yazbeck. I understand, gentlemen, that you each have approximately 10 minutes or fewer for opening statements.

I'll start with Mr. Cutler. You have 10 minutes please, sir. The floor is yours.

[Allan Cutler, Allan Cutler Consulting, As an Individual]

Thank you, Mr. Chairman.

Honourable members, thank you for the opportunity to appear before you to present my experiences regarding the Public Servants Disclosure Protection Act.

My understanding is that it is in its 11th year and we are now commencing the five-year review. The fact that it has taken so long to do the review, and the short period of time for the review, to me is a strong indicator that there is little interest in protecting civil servants who witness wrongdoing.

Something needs to be done. I deal with these damaged individuals continually because nobody else will. I'm past chair of Canadians for Accountability. We are now the only organization in Canada trying to help whistle-blowers. We have no power. All we have is knowledge and the ability to sympathize and empathize.

In brief, the act completely fails to protect those it's designed to protect or that it says it's going to protect. It's designed to protect senior bureaucrats, not the ordinary public servant. I'm going to give examples of the act and its failure, but I want to give some highlights of the history of the act, because not all of you will be aware of the background history of some of the events that have taken place in these 11 years.

The act came into force on April 15, 2007.

By the way, the gentlemen here can correct me if I misstate anything. I'm not a technical expert. I'm dealing with people.

The Conservative Party promised it would bring in legislation that would enable whistle-blowers to come forward without fear. The act as written is not what was promised. If you give public servants guidance to write an act to protect people exposing wrongdoing done by public servants, the public servants will make certain that they cannot be criticized and that they are protected. As written, the act was flawed right from its beginning.

It's also worth pointing out that it's part of the Federal Accountability Act. In that act, the deputy ministers of departments were designated as accounting officers. They're accountable for ensuring that measures taken to deliver programs are in compliance with policies and procedures and that effective internal controls are in place. However, a fundamental problem with that legal requirement and that act is that there is no consequence if you don't, and what has happened? A good number of them have ignored the law because there's no reason to follow it.

There have now been two Auditors General investigations on this office. The first took place October 2010 and ended with Christiane Ouimet resigning for allegedly intimidating employees and engaging in retaliatory action against them.

An internal whistle-blower blew the whistle on the whistle-blowing office. Madam Ouimet was paid about $500,000 to leave—not a bad payment. Mr. Friday, the present commissioner, was the legal counsel at that time and appeared before this committee and testified he had seen nothing done wrong by her in that office at any time.

The second investigation was done in 2014 as a result of two complaints by external whistle-blowers about the treatment they received from the integrity office. Mr. Mario Dion was then the commissioner, and Mr. Friday had become the deputy commissioner.

To quote from paragraph 54 of the Auditor General’s report of 2014:

On the basis of the information gathered during this investigation, we concluded that the Deputy Commissioner committed a wrongdoing as defined in subsection 8(c) of the PSDPA by grossly mismanaging the oversight of the investigation file.

The Auditor General's report also stated that on the basis of the information gathered during the investigation:

We found that the actions and omissions of PSIC senior managers (the Commissioner and Deputy Commissioner) regarding this file amount to gross mismanagement.

Mr. Dion accepted the findings of the report. It was tabled on April 15, 2014.

This is an admission by the commissioner that either he is completely incompetent or the act is extremely flawed. You can't have it both ways, and I don't happen to believe Mr. Dion was incompetent. I think he was working under an act that caused him to appear to be incompetent. Subsequently, he resigned early and was appointed to a five-year term as chairperson of the Immigration and Refugee Board of Canada.

The third commissioner, and the current one, is Mr. Friday. At best, he has the same problem as Mr. Dion, either the act is extremely flawed or he was guilty of gross mismanagement as reported in the Auditor General's report and as accepted by the commissioner of the integrity office at that time.

Having given you a brief background—I could have given you a lot more depth into things that went on in that office and with that office—I want to give you some actual cases that involve the office. For some, I can use the name, but sometimes I can't due to confidentiality.

The first case I'm going to speak on very briefly is that of Dr. Imme Gerke and Dr. Jacques Drolet, a husband and wife who worked for Health Canada. They were recruited by Health Canada and were involved in global regulatory strategies. What they discovered was an inability to do their job and tremendous resistance when they tried to implement the changes.

They made at least two attempts to get together with PSIC, but unsuccessfully. The end result of their story...? They resigned from Health Canada. They sold their home. They moved to Germany and are very happy, gainfully employed, and accepted as professionals in Germany.

The next case is that of Don Garrett, a contractor in British Columbia. He reported wrongdoing by PSIC in 2011. What should be of concern is that the complaint involved asbestos. It took him years, with no help, to find that the asbestos report existed—though denied by the government—and he had no support from the office.

Another employee who reported wrongdoing was fired in retaliation and went to PSIC for help. What they were told was that they were not a government employee anymore. The act states that reprisal includes termination of the employment of the individual. However, the office told them that they were not a public servant so they couldn't be helped. That was dismissed by the office.

Then there's the case of Sylvie Therrien, who I know is going to be mentioned again. She has spent four years trying to have her case looked at. Why has it taken four years? Because she's been fighting the integrity office for four years. The office that should help her is the office that has been abusing her and fighting her, and she's had to have legal representation. As of January 17, the Court of Appeal stated that the commissioner violated her rights and fairness rights. I'll let David Yazbeck speak more on that.

If a person who wants to report wrongdoing faces retaliation and has to fight the people who would be expected to help, why would they do it?

There are a couple of other ones. I've put down why.... I'm going to conclude because I've been signalled that I have one minute. That's fine.

I'm going to conclude with a direct quote from a whistle-blower who has experience with PSIC. This is a written quote he actually gave me through an email. He said that in every case where an employee has spoken out against wrongdoing in government, he has been the one to be beaten up and has been treated very poorly by the employer and in most cases the employee has not been able to return successfully to his job.

That's the experience of whistle-blowers. Nothing has changed with the new law. Nothing has changed with the Public Servants Disclosure Protection Act. It's just as bad as it ever was, and I end up getting the phone calls and dealing with them after they have tried the office and been turned away.

On that point, I'll make one final point. The worst part of the act is that the burden of proof is on the whistle-blower. If I go to you and tell you there's wrongdoing, my management has all the documents and the ability to vet the documents and clean them up before you even go to me, because the act lets PSIC contact them and say, “In 48 hours, or a reasonable time, we want to go in and look at the documents.” Do you really think those documents aren't cleaned?

On that note, I'll say thank you and I'll pass it to my colleagues.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Before I invite Mr. Hutton to speak, I'll say to our two remaining witnesses, I know that you probably have much more information to provide to the committee than the 10 minutes allocated to you; however, it has been our experience that during the questioning, much of the information you have will probably come forward. I ask you if you could possibly keep it to the 10 minutes, so we have enough time in the remaining part of the hour for all of our committee members to ask you questions.

Mr. Hutton, you have 10 minutes, please.

[David Hutton, Senior Fellow, Centre for Free Expression, As an Individual]

Thank you. Please signal me when I'm running out, and I will respect that.

[The Chair, Conservative, Tom Lukiwski]

I will.

[David Hutton]

First of all, I want to thank the committee for the opportunity to testify. People like me have been beating on the doors of Parliament for more than 10 years and asking for the opportunity to explain what's really going on with this law and this agency, and up to now we've been completely blocked.

The last time I was able to address parliamentarians on the subject of this law was in May 2006, before the law came into force, when various NGOs—people like me and Allan—testified that the law was badly written and would fail. As a result of our testimony, the Senate passed 15 substantive amendments to improve the law, one of them dealing with the reverse onus that's been talked about so much. Sadly, all of these were rejected. We're so glad to see the review finally taking place, albeit five years later.

My purpose today is to help the committee understand why this system is failing and what can be done about it. I'll look at the law itself and also touch briefly on the way that it has been administered by successive Integrity Commissioners.

Starting with the law, it's a very complex law and there's a lot to it. What I'm going to do is take a very thin slice through it and take you through the trajectory of what happens to a whistle-blower who approaches PSIC. We'll follow that trajectory.

From the moment a whistle-blower approaches PSIC with a disclosure of wrongdoing, things are likely to go wrong for them, because the very first thing the Integrity Commissioner will do, if he decides in fact to do anything at all, will be to inform the whistle-blower's head of department about what the allegations are. You can imagine that this is quite concerning to that person.

The act claims that the whistle-blower can be protected by strict confidentiality about their identity, but in many cases that's completely bogus. In many cases, only a handful of people have the information that lies behind the allegations. Perhaps the whistle-blower is the only person who's been asking questions about whether something is kosher. Even if that's not the case, departments spare no effort and do everything they possibly can to track down the traitor, the leaker. That's their attitude. There's a very strong likelihood that very quickly the whistle-blower's cover will be blown and they'll be subject to reprisals. That's number one.

Let's say that a whistle-blower still has some confidence in PSIC—they may not—and they go back there, this time with a complaint of reprisal. What happens? You can imagine this person pleading with the entire staff of the commissioner, asking them to please stop these reprisals, and saying that their life in the workplace is now a living hell: they've been isolated, they've been bullied, they've not been given the proper work, they're clearly going to be fired, and they don't know how much longer they can tolerate it. They say, “You told me I was protected, so can you stop this?” Essentially what they're going to learn is that nothing will be done to prevent those reprisals. The management can do essentially what they want to that person, and they just have to sit there and suck it up.

Where's the protection? Well, here's the protection, they're told. We're going to start a process that in all likelihood will take a very long time and that offers the very faint hope that at some point in the future the tribunal will order a remedy for them. The remedy means some kind of compensation for all the damage that's been done to them. That's the protection, but if the whistle-blower asks some questions, they'll discover that no one has ever received a remedy from the tribunal. At this point, they will realize that the promise made to them that they were protected was bogus, and that the life they know and enjoy presently is over and there's no going back.

You can see at this point already that there are serious problems, but let me take you through some of the other steps just so you understand the sheer depth of this.

First of all, nothing happens very quickly now. Although the commissioner has to decide quickly whether to launch an investigation into the reprisals, the actual investigations often take an inordinate length of time. They'll stop and start, and in my opinion, they're very slipshod. We know of one case where it took two years to decide to conclude a simple investigation for reprisal.

The Integrity Commissioner has no powers of investigation for cases of wrongdoing. He has all the powers of the Inquiries Act to compel witnesses and testimony and so on, and to receive documents. For investigations into reprisals he has no special powers. He simply has to go to those accused, the aggressors, and seek their voluntary co-operation. We can see that the investigation itself is likely to be very superficial and take a long time.

If we consider the six or nine months that it might take to conclude the investigation, by this time the whistle-blower's life has dramatically changed, simply due to the elapsed time. The harassment in the workplace has taken a terrible toll on his mental health. He probably has classic PTSD symptoms by now. He has been fired on trumped-up charges, often accused of the exact wrongdoing he's trying to expose. After 20 years of sterling service he's now accused of being incompetent. He has been blacklisted in his chosen profession and is now unemployable.

As you can imagine, he has terrible financial problems as a result of this and is headed towards losing the family home. The stress of all this is unbelievable, which reflects on his family and his loved ones, because they are desperately worried about their future. They do not understand what's going on. They can't understand why they should have to suffer in this way and there's always the suspicion, because they're being told that their loved one is a bad person and telling lies, that he must have done something wrong to deserve being treated in such a horrible way. That's their situation.

Let's say that the commissioner makes a referral to the tribunal. This might sound like good news, but again you begin to see the depth of the problem because in the tribunal, the aggressors, the persons conducting the reprisals, are going to be represented by a team of lawyers paid for by the government, while the whistle-blower has to find the resources to pay his own legal costs.

The strategy of the defence is pretty much always to delay and delay by any means possible. They aim to drag the proceedings out as long as possible, which exhausts the whistle-blower emotionally and financially and destroys the person further in that way.

The real killer is this onus issue that we've talked about, because the whistle-blower's prospects of succeeding before the tribunal are essentially nil. I should say to you that this is such an embarrassment. The reversal on this provision is whistle-blowing 101. It was whistle-blowing 101, 10 or 15 years ago before this law was written and the fact that it would not be in this law is a huge red flag saying there was no intention to ever make this law work.

Faced with the situation and having no understanding of what the tribunal is going to look like, whistle-blowers simply bail out. They're desperate to escape this terrifying process where they know they can't win, and so they settle. Not a single whistle-blower has completed the tribunal process. Not a single one has been ordered a remedy by the tribunal. In not a single case has any sanction been taken against aggressors who ruined this person's life. I want to say more about it. Maybe someone will ask me a question later.

This is only the tip of the iceberg. I'm not going to comment at length on how the law has been administered, but let me say this. For a long time I ran a charity and part of what I did was to run a confidential hotline for whistle-blowers. We gave very minimal help to people. It complemented what Allan's group did. My records show that of the 400-plus whistle-blowers that I had contact with, about 50 of them had dealings with PSIC.

What I learned from their encounters with PSIC would often leave me shaking with anger. I was stunned by the dishonesty, the contempt, and the way they were treated. A previous chair of this committee remarked sometime ago that this was an act not to protect whistle-blowers, but to protect deputy ministers from whistle-blowers. That's exactly the way it is.

I'll end by imploring this committee to dig deeply. Don't just call people from within the bureaucracy, but outsiders who can tell you what's really going on. We've developed a suggested witness list and can explain to you why it's important that you see quite a number of other types of people.

Thank you again for your time and consideration. I look forward to your questions.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Finally, we have Mr. Yazbeck for 10 minutes, please, sir.

[David Yazbeck, Partner, Raven, Cameron, Ballantyne & Yazbeck LLP, As an Individual]

Mr. Chair, members of the committee, thank you for allowing me to testify this morning.

The 10 minutes is real time, not lawyer time, right?

[The Chair, Conservative, Tom Lukiwski]

Real time.

[David Yazbeck]

First, I just want to give you a little bit of information about me. I'm a labour and human rights lawyer here in Ottawa. A substantial portion of my practice is representing whistle-blowers. I've represented Dr. Shiv Chopra and Dr. Margaret Hayden, Health Canada whistle-blowers; Sylvie Therrien, the EI quota whistle-blower; and Corporal Robert Reid, who blew the whistle about corruption in our mission in Hong Kong.

I've also represented a number of others who have had decisions in the Federal Court and before the tribunal. David has mentioned the track record of the tribunal. I'm doing a case in April called Dunn, which is likely to be the first decision from the tribunal on the merits of an allegation. Yesterday, I was in the Federal Court of Appeal on behalf of Edgar Schmidt, the Department of Justice lawyer who expressed concerns about how the department vets bills before they go to Parliament. I have extensive and practical experience under this act.

I want to start with the preamble to the act. It's something I would urge the committee to consider seriously as you conduct the review. Ask yourselves, is this act working in accordance with the intentions of the preamble? The preamble situates the act of whistle-blowing in the heart of our constitutional democracy. It is essential to the operation of our constitutional democracy. It ensures that governments operate properly, it enables people to expose wrongdoing, and ultimately it assists the public. Ask yourselves—you've heard the stories from my colleagues here, and you'll hear some from me—is that the way the act is running? It's not. It's broken, and it needs to be fixed.

I also note that because of that status, I would hope that the committee does give this a thorough and serious review. If you need any more information from me after this session, I would be happy to provide it. I'd urge you to follow my friend's suggestions regarding other witnesses.

I am going to speak about the reverse onus. Reprisal, in fact, is a subtle, insidious, and difficult thing to prove. It's rare that you can find overt or direct evidence of it, and as my friends have pointed out, there are many opportunities to hide that evidence by the time you get to a tribunal. Institutions and managers, often just inherently, and sometimes even subconsciously, turn against the whistle-blower. If the evidence goes, you're out of luck.

This is not an unusual notion. Reverse onus provisions exist in almost all labour relations legislation in Canada in specific cases. I'll give you an example. If you're organizing a union at a department store and your manager finds out and fires you, you can file a complaint and can allege that the termination was based upon your union activity. When you file that complaint, it's presumed to be true and the employer has to disprove it before the labour board. That process has been operating fine for decades. This is not a radical notion at all. If an employer has a reasonable, justifiable basis for the termination, then they'll win. If they don't, then the griever, in this case the victim of the reprisal, will win.

There's an added bonus to the reverse onus. You all know about how few cases actually get referred to the tribunal. In my view, that's in part because the standard the commissioner's office uses is much too high. If you have a reverse onus, it's going to have the effect of reducing the standard when they're investigating complaints, and therefore, increasing the number of complaints that go to the tribunal.

Next I want to talk about the PSIC investigative process, which is flawed. It lacks thoroughness. I find that they view whistle-blowers with suspicion. Often, it's procedurally unfair. There's a tendency to find ways not to deal with a complaint or dismiss it. They don't have a contextual or a subtle approach, in my view. What's troubling is that we have decades of jurisprudence dealing with the Canadian Human Rights Act process for investigating human rights complaints and referring them to the tribunal. That jurisprudence has set out crystal-clear standards for the process of investigation, yet we continue to have to litigate fairness issues in the Federal Court and the Federal Court of Appeal with this commissioner's office. I've done six or eight cases so far, and there will be more to come.

Let me give you two examples. The first is the El-Helou case. Charbel El-Helou made three allegations of reprisal. The commissioner decided that one was justified and applied to the tribunal. The commissioner dismissed two of them. We ended up setting aside that decision because the commissioner's process was unfair. They didn't actually give us a fair chance to influence his decision. The commissioner started a new investigation as a result of the Federal Court's order.

Even though they had already applied to the tribunal, they decided to look over that one allegation again as part of this new investigation. What they did, over my strenuous objections, was to review all three allegations and then decided there was no basis for all three of them, including the one they had already decided had a basis. Now they're taking the position before the tribunal that they can't support that allegation. That's ridiculous. It's unfathomable that they would take that kind of approach when they did have evidence in the first place.

The other thing is that in the course of their investigation, I made a very lengthy submission regarding why all these allegations should go to the tribunal. Internally, they prepared a scathing analysis of our submissions. It was highly critical of me and the whistle-blower. Did they disclose that to us before they made their decision? No. We only find this after the fact.

The second example is Therrien. Ms. Therrien goes public with concerns about using quotas to achieve savings in the EI plan. She gets suspended, her reliability status is revoked, and she's fired. She files a grievance with respect to all those things. She also files a reprisal complaint and says that each of those actions was an act of reprisal.

The grievance has nothing to do with reprisal. We're not alleging it. There's no evidence called about reprisal, nothing like that. But the commissioner's office looks at this and says, oh, she has a grievance and the grievance refers to these three events as well so we don't have to deal with it. They refuse to deal with it. They even make that decision before I get a chance to make submissions to the commissioner's office.

What we say is that I'm counsel for Therrien before the adjudicator, and we're not talking about reprisal at all there. We take the position that the adjudicator doesn't have jurisdiction to deal with a reprisal. What does the commissioner do with that? They say they don't care. It's mentioned over there and they're not going to deal with it.

This ends up going to the Federal Court of Appeal. As Mr. Cutler pointed out, less than a month ago the Court of Appeal said that's unreasonable. Just because those acts are mentioned in this other process, you can't simply refuse to deal with it. You actually have to look at it. You actually have to ask yourself the question, is reprisal being dealt with in that process?

So they'll have to ask the question again and I'm not certain what the answer will be, frankly.

I will also note that those are just two of many legal battles that have ended up in the Federal Court. The only reason those two people were able to do that was because of their unions. In one case it was the Public Service Alliance of Canada and in the other case it was the Professional Institute of the Public Service of Canada. They've been footing the bill to fix this act and how it's operating. If the two hadn't had union representation, they probably wouldn't have been able to do this.

This leads me to the question of legal fees. The fact that the act allows for legal fees of $1,500, and an extra $1,500 in exceptional circumstances, is novel and good. I welcome that, but that's not nearly enough. If you were to go all the way through the process and actually go to a reprisal hearing that lasted maybe four or five days, you would be paying at least $10,000 or $15,000, and probably more, particularly if you don't have access to somebody who knows the law and is up to speed on it.

That has to change in order to make the system more effective. It doesn't have to be giving them costs; it could also be allowing for costs to be awarded in favour of the complainant if they're successful. That's one mechanism. I would offer this caution: please do not suggest that costs could go to the respondent. If that happens, it will have a huge chilling effect on whistle-blowers, because they'll have to be told that they might actually end up paying money.

My colleagues here have spoken a bit about the impact on whistle-blowers, and I agree with them. I think the committee should know that if somebody comes to me and says they're thinking of disclosing some wrongdoing, I have to tell them certain things. I have to tell them that these events will happen, as Mr. Hutton explained. These are not undocumented. There are plenty of articles, journal articles, including an article in the British Medical Journal, about how whistle-blowers are treated when they blow the whistle.

On top of that, I have to tell them, look, you'll need to go through a very lengthy and a likely unfair and difficult investigation process. If we're successful as a result of that process, you'll have to go a tribunal, where you'll have a lengthy hearing, etc., and you may not even win. To that, a lot of people will think it's ridiculous, and they'd be a fool to disclose this wrongdoing. That takes me back to the preamble again. The whole point of the act is to encourage that person to do that. I have to discourage them as part of my advice to them.

The last thing I want to say, members of the committee, if I can be a little strong and almost emotional here, is that whistle-blowers are heroes. They risk their families, they risk their careers, and they risk financial stability in order to make the operation of government better and therefore improve the lives of Canadians.

The system they've been given for 11 years has been proven to be ineffective. It doesn't work. It needs to be fixed. This committee has a golden opportunity to do that. I would urge you to listen to people like us and do that. This is not only better for whistle-blowers. This is also better for Canadians.

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Yazbeck.

To all of our witnesses, thank you.

Colleagues, we probably have enough time for one seven-minute round of questions.

We'll start with Mr. Drouin.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for being here.

I've heard Mr. Cutler's opinion before, but I want to get your opinion on a “pre-act” environment. The act has been in place for 11 years. You perhaps represented a lot of cases before that time. Have you noticed any changes at all?

[David Yazbeck]

I have not really. There is some change in the sense that there is a process available, not only to investigate wrongdoing but also to help people who are engaged in reprisal. I still find that because the process is so ineffective, the advice I give to people is the same; it's not significantly different.

[David Hutton]

I would assert that whistle-blowers in Canada are significantly worse off now than they were 10 or 15 years ago. That's happened in three stages. The first was with the Public Service Modernization Act. There is a section in there that strips public servants of the right to sue their bosses if bad things are done to them. That was slipped through quietly and that was very insidious.

The second was this act, and you've heard several times how bad we think it is.

With regard to the third stage, part of this law requires codes of conduct for each department. The logic, clearly, is that if you look at the definition of wrongdoing, most of it is up in the stratosphere. You can do a lot of wrongdoing without actually breaking the law. It's the code of conduct that tells you the sorts of ways in which most of the wrongdoing really happens, so it made a lot of sense for the law to refer in its list to the code of conduct, but it called for a new code of conduct.

Treasury Board sat on its hands for five years or so and eventually came out with a new code of conduct, and each department had to write its own. Many departments rewrote their code of conduct to criminalize whistle-blowing and to make it a firing offence to say anything negative about your department, and all kinds of negative consequences would flow from that. The media reported that.

Whistle-blowers were better off 10 or 15 years ago.

[Allan Cutler]

I'm totally in agreement.

Let me just say that what has happened is smoke and mirrors. Now there's something to hide behind. We have a process that will help them, so we're not responsible for doing the right thing anymore. I've tried to tell a number of different politicians that they wear what the senior bureaucracy does. Some of them are gods unto themselves. They can do what they want, but if something goes wrong, it goes right up to the minister. It's sort of like, well, we have to cover it up.

Why should you cover it up? Instead you should be thanking God that you have employees who come forward. You should be touting how good your employees are rather than saying, “Look at what they did.” The message you're giving is “Look at what the employees are doing to us.” Well, who's giving you that message?

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

Mr. Hutton, in your statement, you said the first step, when a whistle-blower decides to come forward, is to call the head of the department. I equate that to a situation in which if I'm being harassed by a gang member, the police will call the gang boss and ask if one of their employees is doing this to a member of the society. How would you change that?

I can see why the department, as soon as the deputy is called, would say that it has to protect what's going on in the department, but that creates this culture of covering up as opposed to a culture of openness, as Mr. Cutler said. There's the idea that it has an employee who's sounding the alarm, and it needs to fix that. How do you change that within the act?