Government Operations Committee on Feb. 1st, 2021

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

Thank you, my fellow members.

I'm pleased that our witnesses, who often appear before the committee, are here again to speak to us.

I have a question for Mr. Cutler. However, I would also like Mr. Bron and Mr. Holman to share their views.

Mr. Cutler, I'm wondering whether the Public Servants Disclosure Protection Act should apply to the private sector. I don't know whether you have had the chance to conduct a legal analysis of this issue. Does the federal government have the jurisdiction to legislate in the private sector with respect to employment standards and employability, when several of these areas fall under provincial jurisdiction? I'm curious to hear your comments on this issue, because you said that we need national legislation.

[Allan Cutler]

I don't know if Canada can legislate—I haven't gone through a legal situation—but it seems to me that many, many acts affecting Canadians are national acts. I mean, even paying income tax is a national act, though we may not want to. The point is that you'd have to ask that yourself. I'm talking about a need. How that need is addressed legally, I'm not knowledgeable enough to tell you.

Maybe Sean or Ian have done research on that.

[Ian Bron]

Well, Mr. Drouin, you're not wrong that there is a division between provincial and federal spheres of authority, of course. We probably need laws at all levels. It would be nice to have one at the national level that covers procurement and federally regulated businesses like railways and that kind of thing, because that's still a huge portion of the economy and the private sector.

I think that once you have one good law in place, the other provinces will feel the pressure to also put in better laws. In the case of the Public Servants Disclosure Protection Act, which was passed in 2007, that's exactly what happened. Each of the provinces copied what was done at the federal level. Unfortunately, because of this, all the laws are ineffective.

[Sean Holman]

I'll just add that another thing we should also be taking a look at is greater disclosure by corporations. This is actually something that the federal government started to take a look at in 1978 through the Royal Commission on Corporate Concentration. There were some very good recommendations from that royal commission that talked about the need for greater information disclosure, not just from government, but also from these corporations that were getting larger and larger.

I think it's a two-pronged approach: We need more information from the government, but we also need more information from corporations.

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

Thank you, gentlemen.

I was curious because I know that when certain parties were all contemplating raising the minimum wage, the federal government, it only applied to federally regulated businesses. I figured that if we can only raise the minimum wage in federally regulated businesses, then, obviously, when you create other whistle-blowing acts, it may not apply, but I was curious to hear your opinion.

The other question I have has to do with culture and whether you've been advising organizations on how to create a culture of openness within the system.

I know, Mr. Cutler, that a lot of public servants continue to reach out to you. How do you instill a culture of openness? We can pass all the laws we want, but we know that people break the law, and unfortunately, sometimes you have to go to court to make sure who is right. However, even before we get to that point, have you been advising folks on how to create a culture of openness, making sure that when something is wrong then there can be that discussion with their superiors—unless it's criminal, obviously?

[Allan Cutler]

Both Ian and I have been extensively involved with the whistle-blowing community. I have tried—and I'm certain Ian has—to get into the organizations that talked about wanting to create it. I took the time about four or five years ago and wrote to every deputy minister in the federal system. I only heard back from two or three, and all the letters said, “No, we don't have a problem”, so they didn't need to look at it any further.

What happens is that we deal with the whistle-blowers and actually advise them to avoid—I do, anyway, now—the public routes that are usually there, other than to report it if they have to. We try to help them get the message out through brown envelopes or whatever other means are needed. To do that, we also have to check that it's valid and not just malicious. However, there are so few malicious ones that it's not a hard thing to check.

Ian, you must have comments on it.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Cutler.

Mr. Bron, it's a great question, and if you have anything you think you could add, you could provide that for us in writing, just because of time constraints. I appreciate that.

Thank you, Mr. Drouin.

We will now go to the next round. We'll go to Mr. McCauley for six minutes.

[Kelly McCauley, Conservative, Edmonton West, AB]

Great.

Actually, Mr. Bron, you could comment now if you wish.

[Ian Bron]

I think culture is one of the hardest things to change, especially because the people who are controlling the culture are the ones at the top who have been there for decades. They have been socialized in this way of doing things. So I think getting leadership to buy in is absolutely essential. You have to have leadership who will not only talk the talk, but walk the walk and send a strong signal.

I also am a fervent believer that once you have the rules in place, you have to enforce them. I'm coming to believe that culture follows enforcement. It's a bit like seat belts. There was a time when nobody wore seat belts. Then it was against the law, and eventually people conformed.

[Kelly McCauley, Conservative, Edmonton West, AB]

Let me follow up on that, then. How do we make our ATIP laws with more teeth? I know Bill C-58, in the 42nd Parliament.... We actually looked at it in this committee. It took us a step backward. We've heard, for example, DND hiding items from ATIP that involved Admiral Norman. We've heard the Information Commissioner just put the current government over the rails about the RCMP not providing information in a timely fashion.

What do we have to put in to actually bring in this change of culture that is perhaps pushed by the regulations?

[Ian Bron]

For me, the short answer is consequences. There has to be personal accountability. If an official is hiding information from the public, then there need to be consequences for that official.

[Kelly McCauley, Conservative, Edmonton West, AB]

Who has the best laws out there? You mentioned Ireland and Serbia. Do they actually have consequences built into their whistle-blower...and perhaps on ATIP? Who has the best ATIP laws out there that we could look at?

[Ian Bron]

I'm not an expert on ATIP laws, but I could tell you for whistle-blowing laws definitely there are consequences. One of the consequences is that the company, if they are taking an action against a whistle-blower, essentially has to continue paying that whistle-blower's salary for as long as they want to. So there's a financial cost for them there, and there's also in some countries a criminal sanction.

Criminal sanctions are harder to prove, because you have a higher standard of proof, so you might want to go with something like administrative monetary penalties or something like that.

[Kelly McCauley, Conservative, Edmonton West, AB]

Or perhaps ban them from getting government contracts, like SNC-Lavalin, and then do circuits around that.

I want to follow up on that bit about companies. We heard when we were doing the whistle-blower review that contractors have to be protected as well. We do not have that in Canada; we should. Who out there is protecting the employees levels down...? So they'll send out a contract to a large company that subcontracts. How do we get the protection in for those companies that aren't covered by our current act?

[Ian Bron]

There aren't any jurisdictions in Canada that go much farther than contractors who are actually working on the premises of government, basically. Everything else is not protected.

You basically have to extend the laws on it so that if there's wrongdoing that affects the public sector, the Integrity Commissioner could follow it to the private sector. That's one issue. But then you also have to have a law that protects people in the private sector, and that's why we're advocating for something that covers both.

[Kelly McCauley, Conservative, Edmonton West, AB]

I think that's definitely necessary.

Mr. Holman, I just want to switch over to you. We've seen a massive delay in our ATIPs in Canada. How much is it due to COVID being a valid reason? It's been a year now. On ATIP I've been getting letters back saying it's four years to get simple emails from five people over a one-month period. How much is COVID a valid excuse? How much is the culture trying to withhold information from MPs or the public?

[Sean Holman]

Clearly, the pandemic is affecting it in terms of the ability of the public service to actually access records and do their work easily, but we were seeing these kinds of delays even before the pandemic.

I think it's a bit of both, but it sort of highlights a structural issue that has existed for a very long time. We do need to normalize greater openness in government—greater openness than we currently have.

[Kelly McCauley, Conservative, Edmonton West, AB]

It almost sounds like all three of you are suggesting building back better for information access, as we're coming out of the COVID pandemic. Perhaps my counterparts across the way should use that slogan, “build back better”, to include openness and transparency as well.

[Sean Holman]

I would also include one other thing. You asked about what other measures can be done to encourage whistle-blowing and openness. I would also take a look at the secrecy oaths that we have in the public service. If you start off employment by saying everything's confidential, you're not going to get much openness.

I would also take a look at the growth of the public relations state. We have a whole mechanism of communications now that interferes with the ability of the public, journalists and opposition members to actually communicate with line bureaucrats. I would be taking a look at dismantling that public relations state and actually allowing line bureaucrats to once again communicate with the people who, frankly, are paying their salaries.

[Kelly McCauley, Conservative, Edmonton West, AB]

You know, that's a great comment. I remember a while ago a stream of 22 emails to send one tweet from Environment. It's a great point.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. McCauley.

Thank you, Mr. Holman.

We are now going to go to Mr. Kusmierczyk.

Mr. Kusmierczyk, I like your background behind you. I don't want to show my age, but I do like it.

You have the floor, Mr. Kusmierczyk.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

Thank you very much, Mr. Chair. I'll make sure to convey those kind words.

This is really just an open question. I have really enjoyed this conversation we're having. I think some important questions have been raised, and some important points of discussion.

Transparency International is a leading organization that's tackling corruption. Last week, it released its corruption perceptions index, or CPI, which measures perceptions of public sector corruption in about 180 countries. Canada placed 11th, alongside the U.K. and Australia. They actually have the best transparency score in the Americas. As an example, by comparison the United States came in 25th. There's always room to improve and, no doubt, to do better.

Again, this is an open question. We discussed some of the shortcomings today, but what underpins Canada's performance on this index?

[Allan Cutler]

Maybe I'll go fist.

I'm a member of Transparency International, as it happens. You're right that we're now 11th, but you didn't address that it's a drop from where we were traditionally. We were traditionally, for years, in the top 10. We have dropped out of the top 10 now.

A good part of what is not done in Transparency International is.... It's a perception index. For whatever reason, in Canada, we perceive white-collar crime as misdemeanours. We really don't take the corruption seriously. Consequently, we're higher up in the index than we probably should be, and many people who are in Transparency International would tell you that. They've told me that.

[Sean Holman]

We quite literally don't know what we don't know. If people knew more about what was actually going on in government, maybe we would find that the transparency rating is overrated.

Again, to Mr. Cutler's point, it's perception, not actuality.

[Ian Bron]

There's an organization called Global Integrity that, years ago, used to do its own assessments of a similar nature. They didn't just look at perceptions. They looked at whether there were laws to cover certain acts of corruption and whether these laws were properly enforced. Canada always did very well on having the laws, and not so well on enforcing them.