Government Operations Committee on April 4th, 2017

[The Chair, Conservative, Tom Lukiwski]

Colleagues, I think we'll begin. We're a few minutes late starting. We have not seen Mr. Conacher appear yet, but I understand that he is on his way.

Once again to our witnesses, Mr. Devitt, Mr. Devine, and particularly to Mr. Worth, who is appearing before us for the first time, welcome to our committee as we continue our study on the Public Servants Disclosure Protection Act. As we have done in previous committee meetings, we will be asking each of our witnesses to give a brief opening statement. That will be followed by questions from all of our committee members. We have approximately a little less than two hours for questions.

Colleagues, I would like to take about 15 minutes at the end of the meeting just to go over some very quick committee business, so I'll be adjourning this meeting at approximately 10:30. My understanding is that the witnesses before us will be able to stay for the entire duration of the meeting, except for Mr. Devitt who has to leave at 10:15 to catch a plane.

With that then, colleagues, I think we'll start with our opening statements.

Mr. Worth, you have not appeared before our committee before, so we'll start with you.

[Mark Worth, Manager, Blueprint for Free Speech, As an Individual]

Thank you very much.

I want to thank the chairman of the committee for allowing me to speak with you today. It's a great honour.

I also thank you, honourable members of Parliament, for the time to provide input on your important initiative.

My name is Mark Worth. I am the director of the international whistle-blower project at Blueprint for Free Speech, which is an NGO based in Australia and Germany. I'm also the founder and co-coordinator of the Southeast Europe Coalition on Whistleblower Protection, which is an NGO [Technical difficulty--Editor] board member of the Platform to Protect Whistleblowers in Africa, which is a new NGO founded last month in Senegal.

We work in many countries around the world, in all regions, promoting whistle-blower protection, promoting whistle-blower legislation, working on whistle-blower cases, investigating cases, and writing about what's happening on the issue in general.

I want to start off by telling a little story. There was a man who worked for a government tax office. In 2013 he reported to the authorities that there was large-scale bribery occurring in the government tax agency, the government tax office, which was permitting companies to pay lower export fees and lower import fees. His disclosure led to the arrest of 53 people, so it had a huge impact in the country in terms of holding the guilty parties to account. He was fired quite swiftly and went to the government authority to get whistle-blower protection. He was granted whistle-blower protection status, which meant he had a right to be reinstated to his position with the government tax office; however, the director of the government tax office would not reinstate him. There's a provision in the law in that country that says that if a director of a government agency does not comply with an order to reinstate a whistle-blower, then that person, that director, is personally liable for fines of up to 10,000 euros. On June 4, 2015, the prosecutor called the director of the tax office telling him to reinstate the whistle-blower or else he would be fined 5,000 to 10,000 euros. The next day the man was reinstated. There was a big party and he got his job back.

This is an example of how whistle-blower laws—if they are tightly written, if there is good enforcement, if people understand the process, if there are penalties for retaliation that are actually levied if need be—mean that the whistle-blower can benefit from these rights.

The story I just told you did not happen in Canada. It didn't happen in the United States, which many would argue has the oldest and best whistle-blower laws in the world. It didn't happen in the U.K., which, perhaps not deservedly, has a very good reputation for its whistle-blower law. It didn't happen in Australia or Japan or South Africa or South Korea or anywhere else that has laws that have gotten a lot of attention. It happened in Bosnia and Herzegovina. This is a country that is not known for its success in fighting corruption, but in the case of whistle-blower protection, there have been some good examples.

Bosnia and Herzegovina, which is ranked 83rd out of 176 countries on Transparency International's corruption perceptions index, in this regard has a whistle-blower law that has very strong features that are better than Canada's, which is ranked ninth on the CPI. I think there is a lot to learn not just from the obvious countries when we talk about whistle-blower protection but from the countries that have provisions that are working in practice and that are actually helping people.

There's a lot of creativity in whistle-blower laws today. When Canada's law passed in 2005, we did not yet have the Transparency International principles. We did not yet have the OECD principles. We did not yet have the Council of Europe principles. We did not have other principles developed by other NGOs and organizations, so I think the review you're doing is coming at the right time. There's been a flurry of whistle-blower laws passed. Just since 2010 there have been about 25 whistle-blower laws passed around the world. There are a lot of lessons to learn, and I hope we're going to get into some details throughout the next couple of hours.

One point I would like to make at the outset is that I do not know the Canadian legal system. I just know the American system, and to some extent, the German system, where I live. I think it is not appropriate for an executive branch agency, the Public Sector Integrity Commissioner, to have the power to decide when and if a whistle-blower should have access to a judicial branch agency. I don't want to oversimplify that, but the way I understand it is that the Integrity Commissioner can refer cases to the tribunal. That is not even close to being best practice. I hope that either the law is changed to allow the commission itself to make rulings on reprisal, reinstatement, compensation, and penalties, or give the whistle-blower direct access to a tribunal. For a whistle-blower to have to go to an executive branch agency in order to get access to a judicial branch agency perverts the separation of powers.

Again, thank you very much for the opportunity to speak today. I'm looking forward to the other input and to answering your questions.

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Worth.

We'll go now to opening statements from our other witnesses.

Again, I remind our witnesses that you have testified before at this committee, so if you could keep your comments fairly succinct, it would allow more time for questions from our committee members and I would appreciate it.

Mr. Devitt, we will start with you.

[John Devitt, Chief Executive, Transparency International Ireland, As an Individual]

Thank you, Mr. Chairman, and thanks again to the committee for your invitation. It's a privilege to address you again.

I don't have much more to add to my earlier testimony to the committee. Perhaps I can remind the committee of some of the key features of the Irish legislation with which I'm most familiar and touch on some of the points raised at the last hearing.

The Irish legislation, the Protected Disclosures Act, was introduced in 2014. It replaced or sits alongside about 18 other pieces of legislation on the Irish statute book covering or protecting whistle-blowers. For the first time, it protects whistle-blowers in the public, private, and non-profit sectors.

Essentially all categories of worker with the exception of volunteers are protected, and they are protected against many different types of reprisal both formal and informal. They are protected against formal sanctions, which means dismissal or disciplinary action for having made a protected disclosure. Then their employers are vicariously liable for any mistreatments a whistle-blower might suffer as a consequence of making a protected disclosure. The employer is thus responsible for ensuring that a whistle-blower is not subjected to blame or discrimination or any other mistreatment during the course of their work.

They also have direct access to the courts. One of the most important features of the Irish legislation is the ability of a whistle-blower to bring, within 21 days of being served with notice of dismissal, an injunction or interim relief application to one of the lower courts, the circuit courts in Ireland. That means that a person making a protected disclosure can stop their employer from dismissing them within 21 days.

This is, as I said, one of the most important features, and it's important because, were they not able to avail themselves of this protection, they would likely have to wait two years for their case to be heard in the Workplace Relations Commission and suffer the financial consequences of that and the psychological and practical consequences arising from being out of work for up to two years.

The system has yet to really vet in. We're still waiting for courts to hear many of the cases, but we know that three-quarters of the cases brought to the circuit court for interim relief have been successful so far. We're confident that it has brought or will bring about an attitudinal change towards whistle-blowing in Ireland. We're already seeing the majority of employers in the private sector stating their commitments to protecting whistle-blowers. Some 90% of employers, according to one of our latest surveys, say they are supportive of whistle-blowing, even if the disclosure involves the release of confidential information or might damage the reputation of the employer.

The real test of this legislation is, as is the case with any legislation, in the way it's implemented. We're currently working with the government. We have support from the Department of Justice and Equality in Ireland and the Department of Public Expenditure and Reform to roll out a new program called “integrity of work”, which I'm more than happy to talk about further. It commits employers to ensuring that their employees do not suffer as a consequence of reporting and that action is taken in response to their report.

This is a new program, which we're launching just this year. We've already gained commitment from the Irish police service, the Irish Prison Service, the Department of Justice and Equality, a number of charities, the Environmental Protection Agency.... Around 30 organizations are signed up so far. We're confident that it can help move the discussion forward, away from the legislation itself to the way the legislation is implemented in practice.

I don't have any firm recommendations to make about the Canadian legislation, other than perhaps to echo Mark Worth's concerns about allowing or affording an executive agency the opportunity to prevent workers from availing themselves of their legal rights and access to the courts.

Again I would repeat my comment in the last session to the effect that any legislation should be simple, it should be clear, and it should cover all workers across the economy, not just public sector workers.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Mr. Devine.

[Tom Devine, Legal Director, Government Accountability Project, As an Individual]

Thank you, sir.

At the last hearing I discussed the best practices in global whistle-blower laws that help us distinguish between cardboard shield rights, which doom anyone who relies on them, versus metal shields, which have a credible chance of protecting those who depend on them.

In an analyzed way, I didn't think Canada's law had reached the level of being a metal shield. It was more like a paper shield.

I can just repeat those criticisms, or I can cover the same best practices with an eye towards sharing some of the solutions and examples of functional provisions that have been adapted in other countries, whichever you think would be the most helpful, sir.

[The Chair, Conservative, Tom Lukiwski]

I think, sir, that the best thing for this committee is to allow them to question you rather than go over the same ground that you presented at your last appearance. If you have any new information, please present that now. Otherwise, I would suggest we wait until the information you try to present comes forward during the question section of the committee.

[Tom Devine]

Thank you, sir.

From that perspective then, let me share with you some of the solutions that have been made for the concerns that we addressed about this one. None of these are new problems, and there are many examples of ways to effectively achieve the criteria that I was advocating in the last testimony.

Let's go to the first one, context for free expression with no loopholes, so that restrictions based on formality, context, time, and audience aren't done arbitrarily, reducing the effectiveness of the law. Examples of where we met that criteria include the U.S. model, which protects against disclosures of illegality, gross waste, gross mismanagement, abusive authority, or substantial and specific danger to health and safety. The European model has also been very effective in that it allows a public freedom of expression when it's necessary because internal remedies aren't working. The U.S. model has cut all the loopholes involving job duties, formality, context, time of disclosure. If the information will make a difference under those laws, it is going to be protected.

With regard to subject matter, it's basically the same thing. The U.S. model protects any disclosure of unlawful activity, but based on violation of any law. There are no arbitrary restrictions. Some of the other nations have added to the scope of this. African nations such as Ghana and South Africa are protecting disclosures of threats to the environment. A relatively new development is catch-up protected speech categories, such as large-scale damage in Serbia, professional norms in Romania, and the public interest, generally, in Uganda. These allow us to make sure that the law doesn't limit how it can make a difference.

A third criteria that I thought was significant is protection against spillover retaliation because it does take a village to be effective. A lone wolf whistle-blower probably isn't going to make much difference except to destroy his or her own career. You need to protect that support base, not just the final messenger or ambassador.

The U.S. has in its laws protections for those who are about to blow the whistle, who are assisting in blowing the whistle, or who are perceived, even if mistakenly, as whistle-blowers. Serbia has separate articles in its whistle-blower law for associated persons, for those who are wrongly identified, and for those who are retaliated against just for asking the wrong questions, which are necessary for the research base. Relatives are protected in a number of the African nations' whistle-blower laws. Protection for all people who need the protection....

In the United States, we have a kind of piecemeal protection, but it does cover virtually the entire public and private sector. Other nations go much further. Serbia's covers public employees and private employees, so that's the military, the legislature, national security employees, corporate employees. It covers NGOs and the media. Anyone who is retaliated against for challenging abuses of power that betray the public trust is covered by that law. Korea's laws, Zambia's laws, and Uganda's laws all protect any person, not just national government employees.

Another significant criteria is confidentiality. The flow of information will dry up if you don't have effective protections. Here, if we look to the solutions that have been used, the United States and Serbia have both set the pace by having their laws not just protect the identity, but the identifying information that can be traced back to the whistle-blower. Before anything can be used, there needs to be advanced consent, unless it's necessary to satisfy legal process in which the whistle-blower gets an advance warning.

In fact, the Serbian law even says that the initial confidentiality provisions get carried over into any other government agencies that work on this. Korea actually has criminal penalties for those who breech confidentiality, which is a new dimension in a number of the more modern laws. This is a very significant criteria, and it has been developed.

With regard to unconventional harassment, over a third of the global whistle-blower laws now protect against civil and criminal liability, not just employment liability. There are so many ways to threaten, scare, or effectively silence a whistle-blower. Serbia's language in article 7 of their law is, I think, very illustrative. It's any action that puts the person at a disadvantage. You don't even have to be part of a list.

Anti-gag provisions so that other laws can't overcome the whistle-blower rights, whether they're agency regulations or other broad-based legislative laws, are very significant. The U.S. has five anti-gag provisions in their code and three in the Whistleblower Protection Act. I think Serbia's article 3 is illustrative. It says any provision that prevents whistle-blowing from occurring is null and void. That chilling effect has been the dimension for most of the best practices.

Another criteria is essential support services. Yes, you have an administrative remedial agency, but there are no limits on its discretion and there are no mandatory duties for it to help people. In the United States the remedial agency has a mandatory duty to investigate. It has no discretion to undermine the rights of those seeking help. It must explain its actions to the complainants. In Serbia and a number of other nations, every institution has to set up internal procedures and have somebody who will be there to assist in their implementation.

Burden of proof is the most fundamental cornerstone of any whistle-blower law. Canada does not have one. The reverse burden of proof is the global best practice.

Finally, for the purposes of this morning's presentation, there is the right to a genuine day in court. We're hoping that Canada may finally have, after a decade, the first opportunity for whistle-blowing in your country to get a day in court. This makes the law almost irrelevant, except potentially as a threat to those who are trying to enforce their rights.

Folks, the solutions to the problems that we've seen and summarized in this law do not involve a requirement for creativity. They just involve studying the record of 35 other nations that have been going through the same process of learning lessons and growing pains, and adopting the best examples. Our organization is here to help in any way that would contribute to that process.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Devine.

One way you could help, if it's possible, is to provide an English version of the Serbian whistle-blower protection act.

[Tom Devine]

Yes, sir.

[The Chair, Conservative, Tom Lukiwski]

We would appreciate it very much.

Finally, Mr. Conacher has joined us.

Mr. Conacher, welcome back. Do you have any additional comments you would like to make before we begin questions?

[Duff Conacher, Co-Founder, Democracy Watch]

Thank you very much to the committee for this opportunity to come and testify again on this very important law enforcement matter. That's what whistle-blower protection is really about, I think, with “law” and “enforcement” defined broadly. Making whistle-blowers front-line inspectors in every workplace and everyone who engages with government or business fully empowered to blow the whistle and fully protected when they do is very important in maintaining a rule of law.

I'd like to highlight again a couple of key points, and echo what my colleagues have spoken about, picking up on their testimony. First of all, to remind you again, more than 21,000 voters have signed a petition that Democracy Watch set up on change.org calling for 17 key changes by the federal government to protect people who blow the whistle, not only on government—I know you're focused on that law, protecting public sector workers—but also on business abuse, waste, and law-breaking. As the current banking service scandal shows, and several other scandals with business, we need this protection extended and strengthened for all private sector workers and anyone who engages with business, not just with government.

In terms of coverage, that includes covering yourselves, also covering political staff, covering employees but also contractors, suppliers, and anyone who gathers information, as my colleagues have mentioned. Everyone should be allowed to file their complaint directly and anonymously with a protection commissioner or agency, whether you maintain the one commissioner we have currently and extend it to cover everyone in the private sector that the federal government regulates or set up a separate office that would protect private sector workers. Complaints should be able to go to them directly and anonymously, not through anybody's bosses.

As well, as has been mentioned, reversing the burden of proof as to whether retaliation has occurred is very key and a best practice. A couple of my colleagues have talked about the commissioner being an executive branch officer; they're actually a legislative branch officer. The current Integrity Commissioner is an officer of Parliament, but still is there as a gate you have to go through to go to court. You should either decide to empower that commissioner to issue penalties and provide compensation to whistle-blowers, or allow people to appeal directly to court if the commissioner is not dealing with their complaint in a timely way.

The appointment of the commissioner, or again if a second office is set up, is very important as well. Currently the appointment process essentially allows the government, especially with a majority, to choose whoever they want. It is a political appointment, which allows for both patronage and cronyism, but also the government to appoint someone who will be a lapdog. There should be a merit-based, open, transparent, and independent appointment process. This is very key because the three commissioners we have had, the two past ones and the current one, come from within the bureaucracy.

The current commissioner has been there essentially from the beginning with the initial commissioner, through all sorts of wrongdoing in the commissioner's office, and as far as I know, has not blown the whistle on that wrongdoing himself. I don't have a lot of faith in the current commissioner.

The next commissioner must be appointed, and all cabinet appointees should be appointed this way, especially those enforcing laws. I highlight this because the Ethics Commissioner, Official Languages Commissioner, and Lobbying Commissioner, are all being considered for appointment now by the Liberal government. The cabinet is controlling the choice of all those watchdogs, who will mainly watch over the cabinet and what the cabinet does.

Ontario has the best practice approach for appointments of provincial judges: an independent commission that has six members that come from outside the government and seven members that are appointed by the government—which is the one flaw because the government should not be appointing a majority of that committee, called the judicial appointments advisory committee—but it's operated for 20 years. It does a merit-based public search for candidates who are qualified for these kinds of positions, including people from outside government. It recommends a short list of three, and the cabinet has to choose from that short list. The political control over the appointment is taken away, and you actually have independent judges appointed.

It's the only place in Canada where it's done. It should be done for every cabinet appointment across Canada, again especially in law enforcement agencies that are watching over government.

Turning to the protection commission or agency, I favour the model of giving them the power to impose penalties and require corrective action. They should be empowered and required to conduct audits and rule on all complaints publicly and in a timely manner. The identity of all wrongdoers should be made public, which is not currently the case but should be required. Also, the commission should be allowed to impose penalties and require corrective action of the heads of any government institution in terms of their internal system for showing whistle-blowers that they can blow the whistle and how, including requiring changes to their training system, etc.

They should also have the power to levy significant fines. In the public sector, it should be $100,000 to $200,000 fines for retaliation, and in the private sector, 40% of the business employee's annual salary should be the penalty to actually discourage this kind of retaliation.

Compensating whistle-blowers if their claims are proven is controversial, but the Ontario Securities Commission has done that. Up to $5 million can now be awarded in Ontario for disclosure of security fraud, a wrongdoing by publicly traded companies on the Toronto Stock Exchange, following the U.S. model. It is very important, I think, to at least adequately compensate them, not necessarily to go to the level of a reward but to adequately compensate them for the danger of sticking their neck out. Democracy Watch recommends that at least a minimum of one year's salary be the reward if such a whistle-blower's claims are proven.

Finally, we should allow whistle-blowers to appeal to court if the protection commissioner or enforcement agency that the commissioner has referred the whistle-blower to does not deal with their complaint in a timely manner. We should allow them to appeal to court directly and ensure an independent audit of the protection system by the Auditor General at least every three years.

I look forward to your questions about these and other changes. The devil is in the details of all of these changes. Whether the law says that a commissioner and everyone else involved “may” do something or “shall” do something is very important. It should say “shall” in every case, requiring people to fully and effectively protect whistle-blowers and ensuring high penalties for those who retaliate against them.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

We'll start our seven-minute round of questions now, with Mr. Whalen.

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

Thank you, Mr. Chair, and thank you all for your testimony again today.

I would like to focus on a couple of issues I've been asking previous witnesses about in previous sessions.

The first relates to the scope of what a public interest disclosure should be and what the act should cover. The Canadian act covers serious violations of the employment code of ethics for public sector employees. I notice that employment-related matters and employment contract-related matters are explicitly excluded from the Irish act and also from some of the other acts we've looked at.

I'm wondering what your thoughts are—very briefly because the time is short—on whether or not we should exclude employment contract-related matters from the whistle-blower protection law as a means to focus our attention on the more important and truly public interest disclosures that aren't employment matter-related.

Maybe we can start with Tom.

[Tom Devine]

Sir, by employment-related contract matters, do you mean disputes involving employees and related to salary or working conditions?

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

It could also involve harassment. It could be any breach of the code of ethics under the employment contract.

[Tom Devine]

Yes, sir, almost all of the whistle-blower laws have a two-part structure for anything involving harassment, retaliation, and things affecting the rights in the employment contract. That's part of the remedial section of the law that's investigated.

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

Sorry, Tom, it's actually under what constitutes a public interest disclosure, so let's not talk about retaliation for a second. Clearly, it would be retaliation if it were done against a whistle-blower.

I'm focusing on what constitutes a public interest disclosure, and whether or not we should move to explicitly exclude contract- and appointment-related matters from our definition of “public interest disclosure”.

[Tom Devine]

Yes, sir. Most of the whistle-blower laws do exclude things involving personal injustice—injustice against yourself or threats to your rights as an employee—from the disclosure channel, which is the retaliation channel. They're normally quite separate.

[John Devitt]

In the U.K., a whistle-blower has to show that they are not only reporting a crime, for example, but that it's in the public interest to report that crime.

In Ireland, rather than introduce a public interest test, we made it clear that only those disclosures not related directly to the employee's own contract of employment can be considered protected disclosures. That was aimed at preventing employees from mixing up personal grievances with public interest disclosures.

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

Thank you.

[Mark Worth]

I have not seen a provision in the law that distinguishes rampant, systemic, or across-the-board workplace problems like discrimination, unsafe conditions at work, or bullying from individual employee grievances. Certainly, individual employee grievances should be excluded, as John and Tom rightly say.

This was snipped out of the Public Interest Disclosure Act in the U.K., because it was creating all kinds of problems with people claiming to be whistle-blowers if their chairs weren't comfortable or their parking spaces were taken away.

I would recommend a study to come up with a definition for rampant, systemic, or across-the-board, employment-related problems. I think the public would be interested to know if we have a company of 500 people, and half of them are discriminated against for a certain reason or are being denied overtime pay, especially if it's in a public institution. I think that should be included.

[Duff Conacher]

I would echo what my colleagues have said.

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

Another area of concern we've been focusing on a little bit in the committee is to whom disclosures may be made. Currently, our own Public Sector Integrity Commissioner is asking us to broaden the definition of “supervisor”. I'm wondering if we should define much more broadly to whom disclosures may be made, and whether or not it would make sense to protect whistle-blowers against reprisal when they do their own investigation, try to educate themselves, disclose to their peers, or go directly to law enforcement or the media without first going to their supervisor.

Again, I know it's a complicated question, but are there any additional considerations we should take into account as we consider broadening the scope of disclosures when we might also be considering broadening the protections to extend to the private sector in addition to the public sector?

I guess we can start again with Tom.

[The Chair, Conservative, Tom Lukiwski]

Gentlemen, unfortunately we only have a couple of minutes—even less than that—for all of our witnesses to respond. Please keep your comments very short.