Government Operations Committee on Feb. 1st, 2021

[The Chair, Conservative, Robert Gordon Kitchen]

We'll go to Mr. Holman first.

[Sean Holman]

Mr. Bron probably would be better.

[Matthew Green, NDP, Hamilton Centre, ON]

That's fair enough.

Mr. Bron, in your opinion, how can we adopt your recommendation for an ombudsman? What would that look like, and how would that affect the positive outcomes on a COVID response moving forward?

[Ian Bron]

We looked at a couple of approaches. One was to take an existing office and expand its mandate to serve as a nerve centre, and the other was to create something fresh that would be a stand-alone. You'd pick somebody who had competence in the field and who would lead it. The ombudsperson that we envisioned was a bit of an interim step, because one of the problems that face whistle-blowers across Canada—not just in the federal government but in the provinces—is that they don't know where to go. That's why the Ontario health ombudsman has been bombarded with complaints that are outside his jurisdiction.

If you set up an office like that, you'd find somebody who has experience in the field, and then you'd have to give them staff, and then you'd also have to publicize its existence. The role of that ombudsperson or ombudsman would be to direct people in the right direction, to give them advice. Quite often also, whistle-blowers don't know what facts they need to support them. You'd need personnel who are familiar with the concepts, and—

[Matthew Green, NDP, Hamilton Centre, ON]

It seems to be the case that this is an obvious thing to do, although there may be some examples where this position has also been politicized. But would it also be your opinion that we would need the corresponding legislation to enforce recommendations? As we've seen even with our own committee, we provide findings that are completely disregarded by government, so how would we have that accountability measure in place for an ombudsman to be able to pursue that? If I recall, “ombudsman” is a gender-neutral term and not a gendered term.

[Ian Bron]

You're absolutely right about the gender-neutral term, but there's still some sensitivity about its use.

I'm skeptical about government's ability to pass laws on a dime that would immediately be in force. It can be done, I think, and they certainly did it with the CERB and the employment supplements. Yes, it would have to have some teeth in it, I think, particularly in the longer term, but there's no reason the office couldn't be set up immediately just to provide guidance.

[Matthew Green, NDP, Hamilton Centre, ON]

I like it.

In summary, if this government were committed to being open by default, it's your opinion that they most certainly could.

[Ian Bron]

I believe so.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you.

We'll now go to Mr. Paul-Hus for five minutes.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

In one of my earlier questions, I said that Senator Claude Carignan would introduce a bill tomorrow or this week to strengthen the 2007 whistle-blower legislation. I hope that this bill will be welcomed by the government.

Gentlemen, after hearing from you since the start of this meeting, I sense that there are a lot of transparency and even corruption issues. “Corruption” sounds like a heavy word, but it isn't that complicated to engage in corruption.

Mr. Cutler, you and other witnesses spoke about alternative approaches pending legislation that will help whistle-blowers. The government's current internal mechanisms aren't effective. Apart from the normal process, what are the other ways to help whistle-blowers right now?

[Allan Cutler]

This becomes a difficult one to answer. I'm certain Mr. Bron and Mr. Holman can address it too.

How do you develop trust? Trust is the key core of a whistle-blowing situation, and they're not going to come forward if they don't trust you. They don't trust the present Integrity Commissioner. There's a lack of trust, but there are a few individuals out there, such as Mr. Bron, Mr. Holman and myself, whom they do trust because we keep things quiet, and we've been dealing with them for years.

The only way I can see forward is getting somebody neutral, with a reputation for being neutral, into the centre, and saying, “There's where you go,” which is what Mr. Bron, I think, was mentioning about setting up a separate organization.

Maybe he has a better idea, but I don't perceive any other way to go if you want to get people to speak out.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Cutler.

Mr. Bron, you said that dozens of officials had contacted you, but that they didn't want to be publicly known.

Could you provide some examples of situations reported to you by people who witnessed them?

[Ian Bron]

It hasn't been dozens; it's been a few. One thing that's been remarkable about this is how few people have actually spoken up.

I'm not sure it's entirely fair to blame the public service for the problems. I think that in many cases the people are over-tasked and are doing the best that they can. However, where there is wrongdoing, people are much too afraid to go public, and in some cases, the details of the case will give away where they are and what they're talking about—for example, the employment subsidy.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Last week, the parliamentary budget officer told us that it was difficult to obtain information from the Department of Innovation, Science and Economic Development.

Are any specific departments more likely to have issues in this area when it comes to managing COVID-19?

[Ian Bron]

I think it's probably a better question for Mr. Holman.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Holman, do you have anything to add?

[Sean Holman]

Universally, most of the ministries, most of the departments in government do have these kinds of problems. It's not necessarily exclusive to one department or another. What we see in the statistics, when it comes to access to information in this country, is that all of them—all of them, without exception—are dealing with transparency problems and a lack of transparency.

This is simply because, as my colleagues have said, of the kind of culture of secrecy that has been built up in government, not just under this administration but in every single administration in this country.

[Ian Bron]

I could add that the Privacy Commissioner used to give ratings—didn't they, Mr. Holman?—of A, B, C and D.

[Sean Holman]

Yes, the Information Commissioner did, and we've seen.... You can check Info Source. It includes those statistics on a department-by-department basis. Some are worse than others. We see, for example, significant problems in Immigration. The Department of Immigration has enormous numbers of requests, and also enormous problems with transparency, probably associated with the volume of requests.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Holman, and thank you, Mr. Paul-Hus.

We'll now go to Mr. Weiler, for five minutes.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

Thanks to the witnesses for joining us today for one of our meetings.

I want to pick up on some of the discussion on whistle-blowing that's been under way here. We have a criminal law offence for employers who take action against employees for disclosing information to law enforcement. For all the witnesses, but particularly Mr. Bron and Mr. Cutler, do you think there should also be an offence for employers who take action against employees who make disclosures to third parties, like the media?

[Ian Bron]

I do, yes. The criminal bar is a little harder to reach, if you're trying to prove, but definitely it should be an offence, I would think.

[Allan Cutler]

Yes, the other thing, which we haven't mentioned often enough, is the need in the law to have the reverse onus, which basically says that if employers try to retaliate, they have to prove they have not retaliated. The whistle-blower needs protection from retaliation, and if you make the organization responsible for proving it did not do it, the whistle-blowers will feel much safer coming forward.

That's not just criminal. Keep in mind that, while we're talking about COVID, we also have environmental concerns; we have a lot of concerns out there that are not just financial. There's no protection.

[Ian Bron]

I would also add that the Criminal Code provision has never been used. It's completely ineffective. This is not surprising, because it's just a law that says it's an offence. It doesn't say anything about protection or a duty of the employer. It's basically hollow; it's just a line in the Criminal Code.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

It was brought up earlier by my colleague that the OSC has whistle-blowing protection and incentives. The AMF has the same thing. The SEC, which was mentioned before, has pretty hefty incentives for whistle-blowing.

In your opinion, is this a requirement for having an effective whistle-blowing program?