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.