Government Operations Committee on Feb. 9th, 2017

[David Hutton]

Yes. The challenge is to select the most suitable witnesses.

The third category would be other whistle-blowers, because this system covers only a tiny proportion of our workforce in Canada. It's only federal government public servants. Very similar stuff goes on in the private sector. I think you need to talk to whistle-blowers, and there are lots of them. There are lots of whistle-blowers who have tried to expose private sector corruption, and you need to talk to some of those.

Then, finally—and this is really important—other countries are decades ahead of us. We are the Titanic of whistle-blower protection. We have no experience anyone would want to study, and we've done virtually no research. Other countries are decades ahead. They have excellent lawyers. They have conducted extensive research. You need to have before this committee people who are knowledgeable about those systems, with the extensive insights they have into how whistle-blower laws work in practice. We've suggested some names here that would be extremely valuable to you.

[The Chair, Conservative, Tom Lukiwski]

Thank you so much.

Our final intervenor will be Mr. Whalen for seven minutes, please.

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

Thank you so much for coming here, and thank you, Mr. Chair. It's fantastic to hear testimony from the other side, from people who see there are problems with the system. They're not here to try to defend the system, which, it was very apparent to us two days ago, is not working on some fundamental levels.

[Allan Cutler]

You might say we're from the dark side.

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

Or vice versa.

I have four questions. Hopefully we can be brief and succinct. First, in what particular ways does the Public Servants Disclosure Protection Act give the senior civil service too much power?

Maybe I'll start with you, Mr. Yazbeck, and we'll go down the table, if you can point to some particular ways in which senior civil servants are given too much power by the legislation.

[David Yazbeck]

I think in part it's that there's a system established. Departments are required to have a senior officer and there is a system established. For a lot of people, that's going to be the first place they go to. That, ultimately, puts the determination of whether there's wrongdoing in the hands of the department.

Employees don't have to use that. They could go directly to the commissioner's office, but still, it's sort of the default mode. Beyond that, the way the system is structured is such that the likelihood of someone getting relief if they have been subject to reprisal is extremely slim. There are many tools that senior management can use. They can delay. They could remove evidence. They could make motions before the tribunal on procedural matters. There are all kinds of things that can cause delay.

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

Mr. Hutton.

[David Hutton]

I support what David has said. Basically, senior people have enormous power and in this system there's absolutely nothing to impinge on or affect that in any way.

[Allan Cutler]

He mentioned the senior officer they can go to. Who does that senior officer report to?

Are you going to risk your future career by supporting a whistle-blower? They're in a terrible dilemma.

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

Here's an idea I'd like to float by you before we get an opportunity to look at some foreign systems and how they work. Does the Integrity Commissioner need police powers and anti-corruption experts? Should this organization be responsible as a general clearing house for whistle-blowers, not just in the public or civil service but whistle-blowing generally, so that they could have the expertise and be available? Then they wouldn't be so obviously beholden to the civil service, because their job would be to root out wrongdoing and defend whistle-blowers rather than to prevent wrongdoing and protect departments.

[David Hutton]

I'll respond initially. If you look at the countries that have done the best job, their whistle-blower legislation is sector-blind. In other words, it doesn't matter where you are and whom you've worked for, the same kinds of rules apply. That's the most effective way. The problem getting there is that you may get significant push-back from powerful corporations who are doing nasty things.

It's good idea. If you look at the laws that work well in other countries, then they certainly provide very strong mechanisms for digging in and investigating, and serious consequences, especially for taking reprisals.

[Allan Cutler]

I'm in agreement with you.

One of the things you may not be aware of is that in the office of the Integrity Commissioner, virtually all the staff are public servants. They go in and out. They have their own careers as vested interests because they're going to move back into the mainstream.

[David Hutton]

Let me add one other thought. One of the problems with the investigative process that the Integrity Commissioner uses is that a lot of it is contracted out. We've had situations where an investigation under way was being done very well.... It was the Don Garrett case, in which it looked as if the investigator was going to get to the heart of things and then everything went quiet. What we discovered eventually—

[Allan Cutler]

Two months later.

[David Hutton]

—was that the investigator's contract had been allowed to lapse, so she was no longer involved. She didn't even know that had happened. In my mind, they sabotaged their own investigation. Then someone else was brought in who wrapped everything up in a few days.

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

My final question would be, how tight do the timelines need to be to maintain the appearance of justice and the welfare of whistle-blowers? I guess this is really a question for Mr. Yazbeck because he's involved in procedural matters.

Do we need a special process with very tight timelines, or can we go through the general type of process that's used by the courts?

[David Yazbeck]

Are you talking about timelines in terms of investigating either wrongdoing—

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

I mean at both the investigation stage and also in the tribunal, and then appeals process and the various motions that you talked about, the dilatory motions.

[David Yazbeck]

There's an old labour board saying that labour relations delayed are labour relations defeated and denied, and that applies in this case as well, so tighter timelines would be better. I could give you examples of timelines that we're dealing with on cases that are years and years old and we are still not even at the tribunal yet.

The concern that I have though with very specified timelines is that oftentimes things arise and you need more time and an extension is legitimate, and having too tight a timeline might encourage investigations to be less thorough and less effective, and you wouldn't be able to look at as much evidence as you might. Remember that as part of the investigative process the commissioner is sometimes able to get evidence that will be helpful to use down the road when you actually go to the tribunal. The complainant doesn't have that opportunity. They're just sitting there waiting for the evidence to come to them. Missing out on that opportunity at the start could harm the case down the road.

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

Following up on that, in terms of the amount of work you do in this field, would you say most of your time is spent trying to work on the wrongdoing side of the legislative, or is most of it spent on the reprisal side?

[David Yazbeck]

It's probably about 30:70 with 30% wrongdoing and 70% reprisal.

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

We have an act that essentially has the opposite balance of what we would hope to see if our goal is to actually ferret out whistle-blowing rather than encourage a system that essentially encourages reprisal.

[David Yazbeck]

It seems that way.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Gentlemen, thank you all for being here. To say that your testimony before this committee has been illuminating would be an understatement in my estimation. There are a couple of things. Should committee members have further questions of you, I assume that you would welcome them and you would be able to respond in kind. Further to that, should you have any additional information that you do not think was covered adequately in your testimony here, please supply that through the clerk for the benefit of all committee members.

Finally, gentlemen, let me just say that, in my opinion at least, I think all members of this committee, who I know well, would concur that this issue is certainly one of a cross-partisan nature. There should be no politicking on either side of the table here. It's of great concern, I'm sure, to all members of Parliament to ensure that our professional public servants are dealt with professionally and fairly. It appears from your testimony that in many instances that has not been the case. I can also assure you that the report that this committee will be developing and subsequently tabling in the House of Commons will take your testimony very seriously.

Thank you once again for being here. Your testimony has been wonderful.

[Allan Cutler]

Could I make just one final comment? David and I have discussed this before and we actually handle more whistle-blowing cases than the commissioner does, and we don't get paid.