Evidence of meeting #81 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was whistle-blowers.
A recording is available from Parliament.
Conservative
Erin Weir NDP Regina—Lewvan, SK
If, Mr. Worth, you want to take a couple of moments to just finish the thought, please feel free.
Manager, Blueprint for Free Speech, As an Individual
Thank you, sir.
I was going to say that whistle-blower retaliation is a workplace hazard. If you have a factory where there's an unsafe bulldozer or an unsafe forklift, the labour inspector can go in and have it fixed immediately or if they don't have it fixed, they shut it down. If there's a restaurant with a dirty kitchen, they can go in and fix it immediately. In Germany, where I live, if you're a pregnant woman and you're fired for being pregnant, you can be reinstated the next day. There is no reason whatsoever that whistle-blower retaliation cannot be ameliorated and fixed through a workplace labour inspectorate system. The inspector could go into the workplace, assess the problem, and create an order to fix it, which is just like cleaning up a dirty kitchen, cleaning up an unsafe construction site, or any other workplace hazard. We are completely against this having to go to court.
Has anybody in the room ever gone to court? Nobody wants to do that. I have and for the smallest things. Nobody wants to go to court. It's very naive to think that whistle-blowers, who are damaged or might not have any money, have the will, the energy, and the money to hire a lawyer to go to court and wait, in the case of Chantal Dunn, four and a half or five years for a trial. Even in the U.K., like I mentioned, it takes 20 months. We are completely against any kind of court remedy, except as the last resort.
I want to thank the gentleman from Democracy Watch for the time.
Thank you.
NDP
Erin Weir NDP Regina—Lewvan, SK
That was a good point, and I will absolutely pass on the thanks to Mr. Conacher.
Certainly I think we've established that it's important to give people access to court but also that court is not necessarily the most effective or practical option in many cases.
Mr. Devine, you made the point that our committee need not be particularly creative and that to a large extent we can draw upon international best practices in setting up a whistle-blower protection system. On the other hand, we heard last night from Professor Brown in Australia that it would be a mistake to simply try to replicate the legislation of another jurisdiction and that we need to fit these international best practices and concepts into the Canadian institutional context.
I guess one aspect of that context I'd like to raise is the role of Treasury Board, because we've talked a lot about the Public Service Integrity Commissioner, who is an officer of Parliament, but the whistle-blower protection system in individual government departments and agencies is really administered and overseen by Treasury Board, which is the federal government entity that functions as the employer throughout the federal public service.
I'd like our international guests to perhaps comment on whether this is appropriate or how it could be reconfigured, but maybe I'll go first to Mr. Conacher who, I think, is more immediately familiar with the Canadian system and the role that Treasury Board plays in it.
Co-Founder, Democracy Watch
Yes, the Integrity Commissioner is there essentially to receive complaints, but the administration of the whole internal system—and I'd emphasize that—is very much a system that is saying, yes, you can blow the whistle but no one's allowed to hear about it except internally within government, which doesn't really do much in terms of upholding the public's right to know or really protecting the public. That internal system is all designed to then delay, deny, deceive or divide whistle-blowers and essentially deny them full protection.
That's why I think it's so important that the existing commissioner or a separate commissioner set up for federally regulated private sector workers be given that power and be given the power to order chief executives, heads of government departments, and externally businesses, to take corrective action when they find out that their training and education of workers is not enough or when the internal system has any flaws.
There should be regular audits by that commissioner, and they should have the power to say, “You have to clean this up. This is not best practice. You have to make these changes” and to penalize those chief executives and heads of departments, institutions, and businesses if they do not make those changes to ensure that the initial-stage internal system is actually functioning to protect whistle-blowers and not retaliate against them.
NDP
Erin Weir NDP Regina—Lewvan, SK
Thank you.
I will throw it over to our international guests if they have any thoughts on the role that Treasury Board plays in the Canadian whistle-blower protection system, and whether it might be better to have the structures within departments and agencies instead of reporting to a more independent entity such as the commissioner.
If you're not familiar with that aspect of the Canadian system, there's no pressure, but I'm curious as to whether anyone has any thoughts.
Conservative
The Chair Conservative Tom Lukiwski
Do you want to pick your witness, Erin? We have only about a minute and a half left.
NDP
Erin Weir NDP Regina—Lewvan, SK
Perhaps I'll start with Mr. Devine, just given that he talked a lot about using these international best practices.
Legal Director, Government Accountability Project, As an Individual
Your concern is very well taken. The point of the Civil Service Reform Act of 1978, which set up the modern structure for the U.S. whistle-blower law, was to separate out the agency that had management responsibility from other institutions, which would be independent of those duties and therefore be able to concentrate, without conflicts of interest, on merit-system ranks, such as whistle-blower protection. It would have to be separate. Otherwise, you'd basically be asking an institution whose primary purpose may be at odds with your own interests to be responsible for providing justice when you challenge its alleged abuses of authority. It just doesn't work.
I'd also like to just do a PS on this idea of courts versus informal administrative agencies. It's not a matter of one or the other; you need both. In a global system of justice, there is no substitute for due process and the right to confront your accusers and present your own evidence on the public record. You can't cancel that out. It can be done through administrative due process or through a public judicial system through the courts.
But Mark is right that many people can't afford to go through the full-fledged production of going to court and having the trial. There has to be an informal low-cost administrative remedy. The key is to have controls on that remedy. Without those controls, the delays can be just as bad or worse than in court. The secrecy can be absolute, unlike court, and further, they can turn into traps, Trojan horses. Further, they can actually create victims and investigate the whistle-blowers instead of the retaliation.
The problem with Canada's administrative remedy is that it is uncontrolled.
Conservative
The Chair Conservative Tom Lukiwski
Thank you very much, Mr. Devine.
Madam Shanahan, you have seven minutes, please.
Liberal
Brenda Shanahan Liberal Châteauguay—Lacolle, QC
Thank you, Chair.
Actually, I want to give my colleague Nick Whalen some time.
Liberal
Nick Whalen Liberal St. John's East, NL
Thanks, Madam Shanahan.
I will continue on with Mark and Duff and let them have an opportunity to answer the question of broadening the circle of to whom a whistle-blower may disclose, and whether or not it should extend to co-workers, directly to the police, directly to media, or to others. What should be protected? Also, are there different considerations in respect of the chain-of-command disclosures that might exist in the public sector versus private sector whistle-blowing?
Manager, Blueprint for Free Speech, As an Individual
The one difference between the public and private sector is that in the public sector you want to have, for every agency or institution, a dedicated person regardless of how big it is. In the private sector many laws say, okay, if a company is over 50 employees, or 100, or has x amount of dollars of annual revenue, you have to have an appointed person. If it's a mom-and-pop shop with three employees, it doesn't make sense to have a whistle-blower intake person. You need to figure out the threshold for requiring a company to have a point person.
To answer your first question, you want to have as many disclosure channels as possible. I find your law, as currently written, very confusing. You can report this here, report that there. You don't even want to put a lawyer through having to read this law. It's very complicated. The Australian law also is very complicated.
The notion of the three-tier system—internal, regulatory, then external—could be modified to your liking. If it's reasonable and possible to report internally, that should be certainly encouraged. But as Tom said earlier, you don't want to take away the right to free speech of the employee and the worker. If they're not comfortable reporting internally, and they have a reason for that discomfort, they should be able to go to the regulator directly. In cases of extreme or dire emergencies—threat to life, threat to the environment—or if evidence might be destroyed, as John mentioned earlier, people should have the right to go to the public without reporting internally or to the regulators.
Manager, Blueprint for Free Speech, As an Individual
The idea is to get the information out there, not to limit—
Co-Founder, Democracy Watch
I would just like to say that you want to have multiple channels. Canadian public sector workers, anyone, has a constitutional right to blow the whistle directly to the public if there is endangerment to health and safety under Supreme Court of Canada rulings from the past. But it is vague. It should be set out much more clearly in the law.
I very much favour the commission and an education program for all workers—public sector, private sector, and anyone who engages with government—including public advertising about this. An office is there to go to as a clearing house, to find out exactly what you can do. You can go anonymously to that office. Once you go to that office, even if you try to be anonymous and it doesn't work out, you're protected as soon as you contact them, and that office would help you figure out whether you are in a situation where you can go public right away, and would be in part a legal clinic providing you with free legal advice. We need that.
Liberal
Brenda Shanahan Liberal Châteauguay—Lacolle, QC
Okay. Thank you very much.
Sorry, I haven't been present for all of the testimony, but I am very much encouraged by the passion of the witnesses we have here today that this is a topic that we need to address thoroughly. I'm curious about international cases such as Serbia where I believe the whistle-blower law was brought in fairly recently. Do we have a tally of the results? Do we see that kind of cultural change? If so, please expand on that.
Legal Director, Government Accountability Project, As an Individual
Thank you, Madam.
The record is incomplete, to my understanding, but there is some preliminary data. In the first nine months of Serbia's law, there were 35 applications for temporary relief; 26 of those were granted, which is an extraordinary success rate in freezing retaliation. Aside from the public record of some recent statistics, more recently since last fall, out of 13 cases, eight have been granted temporary relief: five initially and three on appeal. That's really a surprising track record of effectiveness and a good endorsement for the law's potential.
The United States' track record has been about a 25% to 30% success rate for decisions on the merits with our most effective whistle-blower laws, so that to me is the range that you can hope for with a law that works.
Liberal
Brenda Shanahan Liberal Châteauguay—Lacolle, QC
I'm concerned about really the very initial stages: an employee sees something and is not really sure. How do we encourage more people to come forward along the whole spectrum from what could be just something they want to question to actual criminal wrongdoing?
Legal Director, Government Accountability Project, As an Individual
There, the key is protection for internal disclosure. You have to have the right to go public when there's a conflict of interest or obstruction of justice within the institution, but the knee-jerk reaction for almost all employees—more than 90%, and almost every study shows this—is to choose to go to their boss first, to operate within the environment that has been their professional world or life. They very rarely break ranks except out of extreme frustration or after beating their head against the wall repeatedly.
If there's retaliation at those early stages, the word gets around quickly and everybody knows: don't open your mouth. You have to make sure, then, that it's at least safe to operate within institutional channels and then give people the right to go outside if necessary.
