Thank you very much, Mr. Chairman.
It's an honour to be participating today. Whistle-blower protection is really riding the wave of a global legal revolution. Thirty-five nations and six intergovernmental organizations, including the UN, the OAS, and the World Bank now have whistle-blower protection policies. In 1989 there was only one, the United States. GAP has had to draft or enact 33 U.S. or global whistle-blower policies or laws helping 8,000 whistle-blowers since 1977, so we're speaking from a base of experience.
Our primary lesson learned is that weak rights are counterproductive. They increase the chilling effect and associated secrecy when the rights on paper do not reflect reality in practice. As a result, organizations like the Council of Europe, the Organisation for Economic Co-operation and Development, and groups like ours have developed best practices that distinguish effective whistler-blower laws, which are nicknamed “metal shields”, from ineffective laws or “cardboard shields”. If you go into battle with a metal shield, it's dangerous but you have a fighting chance to survive. If you go into battle with a cardboard shield, you're going to die.
Unfortunately, Canada's law is a paper shield, the global lowest common denominator. Its rights are not even in the same league as those of African nations like Zambia or Ghana or former communist nations like Serbia. Using 20 evaluation consensus criteria, the act only passes one and a half, or has about a 15% score. Let's consider why.
The first criteria is the context for free expression rights with no loopholes. Arbitrary loopholes that are based on formality, context, time, and audience dilute the law's potential for accountability. They are stopping up the free flow of information for accountability, and they also create confusion and uncertainty when it's safe to speak out, which causes an associated chilling effect. This law does not protect disclosures to co-workers, which are necessary for the homework to make responsible disclosures, to law enforcement, to Parliament, to the public, or to the media, except in token circumstances.
The second criteria that I consider—and I consider a dozen of the 20 that are most fundamental—is subject matter for free speech rights with no loopholes. It's a given that the whistle-blower law must be protecting disclosures of any misconduct that betrays the public trust. The act does not cover the catch-all category for whistle-blower laws or any anti-corruption laws, or abuse of authority that betrays the public, although it may not be technically illegal. It does not even cover Treasury Board regulations that are significant for procurement.
A third criteria is protection against spillover retaliation. It takes a village of supporting witnesses, expert second opinions, and peer review for an effective, responsible whistle-blowing disclosure. This law does not protect those who assist or who are associated with, and are mistakenly perceived to be whistle-blowers.
Let's go to some criteria very significant for infrastructure. One of those is shielding whistle-blowers from gag orders. Any effective law must override, cancel out, any prior or future rules that contradict or override its free speech rights. They can only be modified by amending the whistle-blower law itself, but this law only protects against parliamentary restraints. Agency gag orders can cancel the national statutes through internal controls. Settlement gag orders are free to lack in secrecy that conceals illegality of public health and safety threats, which is unacceptable for a transparency law.
Let's go to the heart of this act, which is essential support services for paper rights through providing relief through informal investigations, in this case, the PSIC. This is very important so that there's a legitimate channel for closure as an alternative to due process proceedings that many unemployed whistle-blowers can't afford.
But in this act, with the PSIC and its commissioner, whistle-blowers have a toothless investigative agency that cannot even demand evidence of retaliation, that has a blank cheque not to “deal with” complainants' cases or their rights, that has immunity for its actions, and that operates in total secrecy. This is to enforce a transparency law.
Let's go to the next criterion, the right to a genuine day in court. That's the foundation for any credible legal right: the due process right to present evidence and confront accusers in courts reserved for society's highest-stakes issues. This is a whistle-blower law. Under this law, there is no right to any day in court. The PSIC commissioner has to file the lawsuits for the commissioners and hasn't argued a case in court for over a decade.
There shouldn't be any confusion. The lack of due process is the primary reason this act is not legitimate. The rights in the law will not be credible until whistle-blowers have the due process right to defend themselves. In fact, the law even cut out previously available court access, making itself the exclusive remedy.
The final criterion for an effective infrastructure is realistic legal standards to prove violations of rights. These are among the law's most significant features. They set the merits rules of the game for how much evidence is needed to deserve protection and for how much is necessary for each side to win.
On the merits test for protection, the global consensus is the “reasonable belief” test. This is the objective test that information is credible for another person with similar knowledge or experience. Significantly, the whistle-blower can be mistaken, although no law protects knowingly false disclosures.
However, this act uses the outmoded “good faith” standard. That has been discarded, because, first, it's subjective, which creates an inherent chilling effect, and second, because in many cases it led to putting the whistle-blower's motives for disclosing misconduct on trial even more than the alleged misconduct itself. While motives are relevant for credibility of evidence, they're totally irrelevant for deciding whether disclosing information should be protected. The point of whistle-blower laws is to maximize the free flow of information from all witnesses who could help the public and not to make moral judgments about why someone exposed misconduct.
The other part of legal standards is burdens of proof. Nearly all modern whistle-blower laws also have a two-part reverse burden of proof. The whistle-blower's burden is to prove a connection between protected activity and the damaging action, that the action was taken at least for partially illegal reasons. When that occurs, the burden of proof reverses to the employer to prove that it acted for lawful reasons independent of freedom of speech. This two-part reverse burden of proof is standard in almost all modern whistle-blower laws.
Canada's act has no burdens of proof. My understanding from talking with NGOs here is that in practice the burden is entirely on the whistle-blower. This hopelessly stacks the deck.
But once we get out of infrastructure, you have to have a realistic time frame to act on rights. It can take a lengthy campaign to find a good lawyer and gather evidence to file a winning lawsuit, and with a short statute of limitations, employees may not even know that they have rights before it's too late to act on them. Six months is the minimum. This act gives 60 days.
What's the bottom line for any whistle-blower law? It is relief for those who win, and unless there is a “make whole” commitment in the law to compensate whistle-blowers for all the direct and indirect damage from retaliation, they will still lose by winning, and the law will make the chilling effect worse. This has to also include the cost of litigation, such as the cost of hiring an attorney so that you have a chance to fight your case. This act does not include the “make whole” principle, and it has only token, dormant provisions for attorney fees.
Now let's go to preventing retaliation, personal accountability for retaliation. Without it, through liability—