Government Operations Committee on April 4th, 2017

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Devitt, do you have anything to add to that?

[John Devitt]

The one thing that makes a whistle-blower vulnerable, more than anything else, is the lack of response from their employer. If their employer does not act on the disclosure and colleagues of the whistle-blower observe a lack of action, they will assume that the person who has spoken up has done so without any just cause. It makes the individual very vulnerable. It puts them in a very vulnerable position to have their employer ignore their concern.

At a more extreme level here, we had cases involving two police officers and a chief of police who subsequently resigned after a major controversy arising from police corruption, petty corruption. Two police officers had exposed this corruption and then their actions were described in Parliament by the chief of police as disgusting. This served to further isolate the two men and put them under enormous pressure.

It's vitally important that employers are seen to take action. That's why we're working closely with them here and we're more than happy to share our experience with the committee in working with public bodies in ensuring that action is taken in response to concerns.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much. We're out of time for you, Francis.

Mr. Devitt, I understand you have to leave now to catch a plane, so thank you very much for your appearance before us. I'll mention to you, as I will to all witnesses at the conclusion of this testimony, that if you have any further information that you think would be of benefit to our committee, please forward it directly to our clerk. Your contributions are greatly appreciated.

Mr. Weir, we'll have a short three-minute intervention by you.

[Erin Weir, NDP, Regina—Lewvan, SK]

If Mr. Devitt can stay for another three minutes, I was actually going to ask him to tell us a bit about the “integrity at work” model in Ireland.

[John Devitt]

This is a new initiative, which we designed, aimed at getting commitment from employers across the public, private, and non-profit sectors to respond and act upon reports made to them and to ensure that people don't suffer as a consequence of reporting.

We have around 30 organizations from the public and non-profit sector signed up so far. The Department of Justice and Equality and the Department of Public Expenditure Reform are sponsoring the initiative. It's in a trial phase. The employer has to sign a pledge, which they make public, to the effect that whistle-blowers won't suffer and that action will be taken in response to concerns. They need to make their staff aware of the availability of free legal advice from Transparency International or any other organization that might be in a position to provide it.

Also, there is an opportunity to come to us when a whistle-blower suffers reprisal or is not satisfied with the response of the employer. We then can file a report to the employer, including the chief of police or senior police officers, to highlight the experience of the individual, and as Tom pointed out, to avoid the opportunities for plausible deniability. In future, senior police officers won't be able to say they did not know that a whistle-blower was suffering as a consequence of speaking up.

One of the important features of this is that they also have to inform their primary stakeholders of their participation in this initiative so that Parliament will be aware that the police service is engaging in the initiative, as will the Policing Authority and the police ombudsman. Each of those different agencies will also be signing up; thus, if a whistle-blower from the police ombudsman or the Policing Authority wants to contact us, they can do the same.

We're trying, then, to establish a standard by which organizations will comply. We'll provide them with resources, a checklist, a self-evaluation, a tool kit, and then will provide them with an annual report based on the reports that are made to us and recommendations arising from the initiative.

I'd be more than happy to share more information with you at a later stage.

[The Chair, Conservative, Tom Lukiwski]

Thank you, Mr. Devitt.

Colleagues, as I said at the outset of the committee hearings, I'd like to suspend at 10:30 to go into committee business. Given that, can we go to three five-minute rounds? We'll have one from each of the officially recognized parties of the committee, rather than the seven-minute rounds. That should get us to our deadline.

We will start, then, with Monsieur Ayoub.

You may go ahead for five minutes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Thank you, gentlemen.

Let me start by saying that, after listening to you, I wouldn't want to become a whistle-blower. Even if I had nothing to lose, I think that I would still come out a loser. No matter which country we are talking about or what its legislation or regulations are, I don't have much confidence.

I sometimes get the sense that the whistle-blower regime is a huge elephant. My definition of a whistle-blower is someone who indeed blows the whistle, but who does not become responsible for that action. The impression I have, however, is that, right now, the whistle-blower bears all, or nearly all, the responsibility. In many cases, the onus of proof is entirely on the whistle-blower. Things may be slightly different in some countries, where distinctions exist.

Mr. Devine, when I went to the Government Accountability Project, or GAP, website, I saw that people could report fraud or other illegal activity online. That made me wonder whether people weren't afraid to fill out the form on the Internet. All of the technical and legal details are listed, and then, it says that everyone is shielded. The whistle-blower, however, receives little or no protection, at least initially.

In the case of journalists, the public or confidentiality aspect hardly ever comes into question. Everyone knows that, when information is revealed to journalists, they usually take steps to protect their sources. In this situation though, a mechanism is being created to protect the system within the system. Frankly, I cannot get past the fact that the results are so poor, given all the costs and people involved. My sense is that very little is achieved in the way of results.

Mr. Devine, I don't know where you stand, but, on a philosophical level, I don't think we're moving towards practical solutions for whistle-blowers around the world.

[Tom Devine]

Yes. This is not a new phenomenon. As long as we've had organized societies, power's been abused and people, sooner or later, have stuck their necks out and challenged it and said, “This is wrong”. If they do it with weapons, sometimes they're called “revolutionaries” or “terrorists”. If they do it just with words, it's “freedom of speech”. This is always going to happen, and it's always going to be dangerous, because those who are threatened by it are never going to be passive. The challenge is to minimize the risk as much as possible for the responsible disclosures that will help the public good.

In terms of your questions on online disclosures and protection, those are facilitated by the U.S. law, which protects disclosures based on their contents, unless the information is classified or specifically prohibited by law. Except in those two contexts, you're eligible for free speech protections when you engage in public freedom of expression, which could be on television or through an online disclosure.

As far as few results go, this is a great question because the lack of results in every study that's ever been done is identified as the primary chilling effect. People remain silent observers instead of challenging abuses of power that betray the public, not because they're scared but because they don't think it will make any difference. With an effective whistle-blower law, you can get results.

Let me give you a brief menu of some of the results in the United States from our whistle-blower law.

[The Chair, Conservative, Tom Lukiwski]

Mr. Devine, very briefly, sir. We only have a few seconds.

[Tom Devine]

It has stopped, has exposed blanket domestic surveillance and led to passage of the USA Freedom Act. It's gotten dangerous drugs off the market, such as Vioxx, which killed 50,000 Americans. It led to resources in Afghanistan and Iraq that protected our troops against land mines. Therefore, the casualties from land mines dropped from 60% to 5%. A whistle-blower in the Federal Air Marshal Service prevented a more ambitious rerun of 9/11. They have stopped the United States government from deregulating meat and poultry inspection, getting government-approved food vouched for by corporate honour system, five times. They've prevented nuclear power plants from being completed. There were accidents waiting to happen because they were systematically illegal. They have increased our national recoveries against fraud, from $26 million a year to over $3 billion in fraud in government contracts the last few years.

If we protect these people, they can make a difference. They're changing the course of history, more than at any time before. This is a very strategic moment for Canada to get in as part of that process.

[The Chair, Conservative, Tom Lukiwski]

Thank you so much, Mr. Devine.

Mr. Clarke, you have five minutes.

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

Thank you, Mr. Chair.

Mr. Conacher, before going any further, I would like you to clarify something for me.

You said that the commissioner does not have executive authority because he is an officer of Parliament, but Parliament has three branches: executive, legislative, and judicial. Why do you say that the commissioner's authority is legislative rather than executive?

[Duff Conacher]

The commissioner is an officer of Parliament, who is tied too much to the executive branch because the executive branch, the cabinet alone, selects the person, and that's the conflict of interest that others have talked about through the whole system.

Just to talk about one other thing that Tom Devine raised, and that is these internal disclosure people. Compare that to the access to information system. Under our Access to Information Act, there are employees who are access to information officers. Their job is to handle access to information. Under the whistle-blower protection law if someone is designated, they're still doing their other job, they're still within the whole hierarchy, they're hired by their bosses, and they're looking for promotion in their other job. They're just designated to be the internal disclosure person.

It would be great if those people could be the ombudspeople that Tom Devine has talked about, but they're not independent enough to be that.

One idea may be that the commissioner should be selecting those people, that those people should be made like access to information officers where their full-time job is to only do this. Have the commissioner select them, and not have their deputy minister or their deputy head be choosing them, to give them the independence to be that ombudsperson. Because right now I don't trust that those people, in the really hard cases, are not going to feel the conflict of interest from wanting a promotion to continue in their job, because they're just designated to be this internal disclosure person.

That's why I emphasize so much a central office that's a clearing house that everyone is promoted and educated about regularly, not just once when they're hired. When you're talking about some of the integrity at work initiatives, they're getting at the behavioural psychology of changing the culture and nudging people—which I'm sure you've heard about—governments nudging citizens to comply with laws. We need nudging within government as well.

One of the things I think should be done is that whenever a decision-making process begins, not only should people be signing the values and ethics code of the public service again but also everyone who is involved is handed a statement that they have a right to blow the whistle if there is wrongdoing in this process. That's how you nudge people and remind them. I just don't think that internal officer is ever going to be a person unless they become like an ATIP officer where they are hired independently—ATIP officers are not hired independently—where it's their sole job. Otherwise, they'll have the conflict. I think a great idea is to have the commissioner be able to hire all those people in every government institution.

You may say that's going to cost too much. Then you have to have a larger central office that everyone is educated about regularly, multiple times a year, that this is the place to go if you have any questions, and as soon as you contact them, even anonymously, you and all your colleagues you may have talked with about it are fully protected.

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

In an ideal political system, the convention of ministerial responsibility would be absolute, meaning that a minister would resign as soon as their department committed a wrongful act. In England, that's how it works, but I'm not sure whether the responsibility is consistently applied, as was the case a few decades ago. Conversely, in the U.S., the responsibility lies at the bureaucratic level, and the government is not responsible for anything.

My comment transcends all partisanship and all government parties. Is the whistle-blower problem in Canada not due to the fact that absolute ministerial responsibility no longer exists? In other words, ministers don't step down when problems occur in their departments, unless the media outcry is strong enough.

We don't follow the honourable convention whereby a minister resigns when their department makes a mistake. Ironically, departments have an internal mechanism where employees have to first report the wrongdoing to a designated person, who then notifies the deputy minister. The deputy minister, in turn, notifies the minister. That chain of command is doomed to fail because everyone knows the minister will do everything in their power to push the blame down the chain, because they don't want to resign.

The problem is due to the fact that Canada does not follow the constitutional convention of the Westminster system. Is it not?

[The Chair, Conservative, Tom Lukiwski]

Unfortunately, Mr. Conacher, we are completely out of time. As I am fond of telling all my committee colleagues, the five minutes allotted to them are for both the questions and the answers, but when we're out of time, we're out of time.

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

That's what interests me in life.

[The Chair, Conservative, Tom Lukiwski]

Mr. Weir, we'll end with you unless you want to cede some of your time to Mr. Conacher to respond to Mr. Clarke.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thanks. I would like to first go to Mr. Devine. Since you're in Washington, I can't help but ask about the current controversy involving former national security adviser Susan Rice and the disclosure of intelligence information. Do you have any comment? Are we going to see the American whistle-blower protection system in action here?

[Tom Devine]

We have a parallel system for intelligence workers. Twelve out of the first 32 nations that adopted whistle-blower laws had some type of exemption or reduced rights for national security workers. The majority rule is to give them the same protection against retaliation as everyone else.

The structure in our country is that they have free speech rights for dissent within the government agency. They don't have public freedom of expression, but they do have protection against retaliation for operating through the chain of command. They can make disclosures of misconduct, not only through the chain of command but also through the intelligence oversight committees in our Congress.

Actually, that system has been working fairly effectively because the leadership responsible for its enforcement has been operating in good faith and is highly committed to it.

[Erin Weir, NDP, Regina—Lewvan, SK]

Thank you. I would like to give Mr. Conacher a couple of moments to respond to the question from Mr. Clarke about the Westminster system.

[Duff Conacher]

Yes. I think the point of the flaw is.... I don't think a minister should be accountable for everything that people in the bureaucracy do, because sometimes they're not informed. However, if they are informed about it, they should be held accountable. The real crux of the matter is that the deputy ministers and assistant deputy ministers are selected by the cabinet.

The Gomery commission—after reviewing the sponsorship ad scam spending scandal—recommended that deputy ministers be selected through an independent commission and given a fixed term of office, and that they should only be able to be dismissed with cause. That is key to having an independent public service. Everybody below assistant deputy minister and deputy minister knows that to reach the top, you have to please the politicians. That's why it's so key to have fully independent officers if you really want those internal people to be ombudspersons.

The ATIP officers are there already. Why not designate them as the people? They have more independence and they're within a system of access to information, which is part of whistle-blowing and the public's right to know. It's flawed.

The Gomery commission recommendation was responded to by the gang of 60 who came out—former prime ministers and deputy ministers saying you can't do this and deputy ministers have to be blindly loyal to their ministers. No, they have to be loyal to the rule of the law and upholding what's right and in the public interest. That's a fatal flaw in our system currently, and it means the public service is not as independent as it needs to be. Whistle-blower protection cannot work without a fully independent office for people to go to.

[Erin Weir, NDP, Regina—Lewvan, SK]

I think you make a really critical point about the importance of the appointment process in maintaining that independence.

I would like to conclude by going to you, Mr. Worth, on that question of the process for appointing an independent commissioner and independent officers.

[Mark Worth]

Yes, this is the biggie. I mentioned Bosnia earlier. In Bosnia, the anti-corruption commission is accountable to a three-member parliamentary committee that has one member from each of the parliamentary factions. I don't know about the Canadian system, I am very sorry, but I am all in favour of the legislative branch having as much authority as possible. This is the most democratic branch, of course, and the most transparent branch usually. I think you have to give the people the opportunity to weigh in on the appointment to this whistle-blower office.

Maybe Tom can comment on the U.S. system, but our research shows that the most important thing is for the office to specialize only in whistle-blowing. If it's tacked onto some other institution, it's not going to work. If it's a side office in a ministry of justice or anti-corruption or something.... You need to have a whistle-blower office, and people there whose only job is to protect whistle-blowers. I think you need to have a whistle-blower office for the public sector and a whistle-blower office for the private sector.

In the United States, the SEC has a whistle-blower office. The Office of Special Counsel has an independent whistle-blower office. All they do is protect people from retaliation. The IRS has a whistle-blower office. You need to have a dedicated staff of people who spend all day working on protecting whistle-blowers and nothing else.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much. Unfortunately, colleagues, and to our witnesses, we're out of time.

I do want to comment, particularly to our witnesses. When this committee started undertaking a study on the current whistle-blower protection legislation, we all thought, at the committee level, that it would only take a few meetings. It has expanded far beyond that in no small part thanks to the testimony of individuals like yourselves.

This has been of great benefit to our committee. The committee members now fully understand the fact that we have a big job in front of us in terms of reporting back to the government as to potential changes and perhaps—I don't want to speak without the consent of the committee—necessary changes.

Should you have any additional information that has not been covered by this committee, once again, I would encourage you to submit that information to our clerk, anything you think would assist us in our deliberations. Thank you again.

Committee members, we will suspend for a couple of moments, and then we'll go in camera for committee business.

[Proceedings continue in camera]