Government Operations Committee on March 21st, 2017

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Hello, everyone.

I want to thank you three for participating in today's meeting.

My first question is for Mr. Devine.

In the committee's briefing documents, I read that you represented over 5,000 whistle-blowers. That's quite impressive. I imagine that you did so with the support of the employees in your office.

I want to know whether you could tell us any common traits identified among the whistle-blowers, or the common causes that led them to disclose certain information, if applicable. I also want to know how their processes ended.

Okay, I can speak in English.

[The Chair, Conservative, Tom Lukiwski]

Let me just clarify....

Mr. Devine and Mr. Devitt, are you able to hear the translation?

[Tom Devine]

No.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Okay, Mr. Devine, I'll just speak in English. It's not a problem.

I read in our committee briefing notes that you and your office defended up to 5,000 whistle-blowers, which is quite exceptional. I just want to know if you have identified any common traits in all those cases?

[Tom Devine]

I'm sorry, our sound was a little bit poor. I know you asked me about common themes in the whistle-blower cases. Is that your query?

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Exactly.

[The Chair, Conservative, Tom Lukiwski]

Correct. Is there any commonality amongst the 5,000 cases that you have worked on?

[Tom Devine]

I think there are two common themes. One is the whistle-blower's motive for speaking out. That's universal. Whether it's something we put a positive or a negative value judgment on, they had to exercise those free speech rights in order to be true to themselves. If they hadn't acted on their knowledge, for better or worse, for good or bad reasons, it would have haunted them for the rest of their lives. It's something intrinsic to citizens of a free society.

The second common theme is that these were people challenging abuses of power that could not withstand independent scrutiny. That's why whistle-blowers are so effective when they work with us. They're exposing misconduct that can only be sustained if it remains secret and people don't know about it. That's what makes this law so powerful in terms of its potential to have an impact for change. In my opinion, since the time of religious leaders like Jesus and scientific leaders like Galileo and Copernicus, whistle-blowers have been the people who have changed the course of history.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Interestingly, you compare our law, which is just black ink on a paper, with other laws, in Zambia, for example, or the law in the United States. Of course, as you know culture changes everything.

You spoke about culture, Madam Gualtieri, and education to make the public more sensitive, along with the grassroots people. I guess you were speaking about public servants and Canadians in general.

If we take into account the cultural aspect, I'm not sure if we can correctly compare laws between each country. For example, we were always told that, in the United States, there's a huge culture of whistle-blowing that has been going on forever, but this is not the case here. You spoke about the importance of having good due process procedures and to have tangible support or a village of people supporting each whistle-blower.

The question is to all the witnesses. What kind of proposal would you have for Canadian people to induce some cultural impetus for whistle-blowing?

[The Chair, Conservative, Tom Lukiwski]

If I could ask all three witnesses to respond but for only about a minute each, I would appreciate it greatly.

Ms. Gualtieri, we'll start with you.

[Joanna Gualtieri]

I speak to university students. In fact, next week I'm going to the University of Western Ontario. I can tell you that they simply do not understand what is at stake here. Once they do, they are engaged and they feel enormous enthusiasm. I met with a journalism student a couple of weeks ago, and I was stunned. She said that very few of her colleagues knew what whistle-blower meant. There are ways to do this. Tom talked about Serbia. In conjunction with passing the law, he said that they had town hall meetings across the country. We can do that. Once we engage in that kind of outreach, I tell you the culture will change.

[The Chair, Conservative, Tom Lukiwski]

Mr. Devine, do you have a brief response, please?

[Tom Devine]

Yes.

No matter what the culture, the magic word for any society is “consequences”. What's made whistle-blowers laws popular and the reason they have spread so much is effective education about the tragic consequences that could be avoided if it weren't for secrecy and the disasters that can be prevented when we have the knowledge to act in a timely manner. That's why whistle-blowers have gone from being pariahs to being on a public pedestal in the United States because they have made a difference.

The more that your process can foster, not just strengthening the law and adding more teeth to these rights but getting the word out about how this can make a difference in changing society, helping people's lives, and preventing unnecessary disasters or tragedies, you'll have the political support.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Mr. Devitt, very briefly, please.

[John Devitt]

If there's one measure you can take to change culture, it's to create one single standard that employers and employees have to meet when making disclosures. Having one single, simple strong law in place is better than having 20 on the statute box. That's the approach the Irish government has sought to take. It's one that has gained ownership and buy-in from employers, trade unions, public bodies, and regulators.

In our own survey of attitudes towards whistle-blowing recently, we found that between 90% and 95% of employers said they supported whistle-blowers even when they're disclosing confidential information. It's important to have one single law on the statute box and a strong one.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

We'll now go to Mr. Weir for seven minutes, please.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thank you, Mr. Chair.

I'm kind of stunned that we've had seven minutes of Conservative questioning that did not pick up on the point about gag orders as they relate to the procurement of Super Hornets. I would like to ask all of our witnesses how they would reconcile exempting whistle-blowers from secrecy agreements or gag orders with the genuine need to read in officials who are involved in procurement of things that include commercially sensitive information.

[The Chair, Conservative, Tom Lukiwski]

Mr. Devine, do you want to start?

[Tom Devine]

Sure. This has been a topic that has been heavily analyzed in the United States. The Whistleblower Protection Enhancement Act of 2012, which was passed after 13 years of study, has four of what we call anti-gag provisions in the law.

The principle is essential because otherwise agency secrecy agreements can cancel out the statutory free speech rights, or settlements can make a joke of the quest for justice by sacrificing the public interest. There has to be a responsible balance.

The boundaries in the United States are that if information is marked as classified for military reasons, or it's release is specifically prohibited by a statutory provision, by our Congress or your Parliament, you can't publicly release that information. Any other restrictions, however, are superseded, if the information is covered by the whistle-blower law. If it's evidence of illegality or threats to public health or safety or mismanagement, you don't have the free speech right to make a blanket disclosure. However, that particular part of the information, you cannot be gagged from. That's been in every U.S. whistle-blower law since 2000 because without it the laws would be circumvented easily.

[The Chair, Conservative, Tom Lukiwski]

Mr. Weir, did you want to have responses from all witnesses?

[Erin Weir, NDP, Regina—Lewvan, SK]

If the other witnesses have something to add on this, that would be great. If not, I have many other questions.

[Joanna Gualtieri]

I'll briefly address the gag order. There's something that is so fundamentally perverse that a whistle-blower, who by definition steps up with information of public value, is then forced into a gag order and forever prevented from speaking that which they basically made...that was a major feature of their life. It's so fundamentally wrong.

Tom has spoken to how you can go about reversing that Orwellian manoeuvre.

[Erin Weir, NDP, Regina—Lewvan, SK]

Mr. Devitt.

[John Devitt]

The Irish Protected Disclosures Act, under section 23, prohibits an employer from forcing an employee to sign a gagging clause. It's very clear, irrespective of what. There are either exceptions for those sharing information that might be related or have an impact on national security. However, where public contracting is believed to be subject to wrongdoing, there are no provisions to prevent an employee from sharing information or making protected disclosure about that.

[The Chair, Conservative, Tom Lukiwski]

Mr. Weir, you have about three minutes left.