Government Operations Committee on Feb. 1st, 2021

[The Chair (Mr. Robert Kitchen (Souris—Moose Mountain, CPC)), Conservative, Robert Gordon Kitchen]

I call this meeting to order. Welcome to the 16th meeting of the House of Commons Standing Committee on Government Operations and Estimates.

The committee will meet today from 3:08 my time, which is 4:08 your time, and we will try to stay on time and hopefully get through this as quickly as we can, so that we can have time to hear clearly from the witnesses and to be able to ask questions.

We will hear witnesses today as part of the committee's study on the government's response to the COVID-19 pandemic.

Just to inform the members, the committee will not meet on Wednesday, February 3. We expect a large number of votes following question period that day—we understand close to five—which is going to add an extended amount of time that will prevent the committee meeting that afternoon. We tried to reschedule, but we were unable to, so we have rescheduled the planned witness for the next meeting of the committee on Wednesday, February 17.

To ensure an orderly meeting, I would like to outline a few rules to follow.

Interpretation in this video conference will work pretty well like a regular committee meeting. You have the choice, at the bottom of your screen, of floor, English or French. Before speaking, please wait until I recognize you by name. When you are ready to speak, you can click on the microphone icon to activate your mike. When you're not speaking, your mike should be on mute.

For those participating in the committee room, please note that masks are required unless you're seated and when physical distancing is not possible.

My understanding is that each witness has an opening statement. You will each be given five minutes to speak. We will go in the order I have on the notice of meeting.

With that, I will invite Mr. Bron to deliver his opening statement.

Mr. Bron, the floor is yours for five minutes, please.

[Ian Bron, Senior Fellow, Centre for Free Expression Whistleblowing Initiative and Coordinator, Canadian COVID-19 Accountability Group]

Thank you very much.

Good afternoon, Mr. Chair and members of the committee. Thank you for inviting me to speak on this important issue, whistle-blowing during the COVID pandemic.

The group that I represent, along with Mr. Cutler and Mr. Holman, was made up of a range of Canadian experts in transparency and whistle-blowing, who were brought together to seek solutions to a problem: how to detect and correct wrongdoing in both the public and private sectors during the COVID emergency. I've also been researching whistle-blowing in Westminster governments for several years.

At the start of the pandemic, there were numerous stories of shady deals for PPE, not just in Canada but all over the world. Later, I heard of employers failing to pass on the emergency wage supplement to their workers and of employees being too afraid to speak up for fear of losing their jobs.

In Ontario, Ashley Jenkins was fired for speaking up on conditions in a long-term care home. Nurses in Quebec complained of similar reprisals. You may also recall that the Canadian Armed Forces sent in medical personnel to assist in long-term care homes in Ontario. The horrifying details of what they found were leaked to the media, revealing just how badly provincial oversight had failed.

These cases represent only a tiny fraction of employees who have observed wrongdoing. Research shows that only about half of employees will ever report serious wrongdoing, and that only about 10% ever disclose outside of the organization, usually when internal disclosure has failed. Less than 1% of them will ever approach the media. This implies that there are hundreds of cases of COVID-related wrongdoing across Canada that we know nothing about and that may be ongoing.

Transparency, as my colleague Mr. Holman will attest, is one part of the solution. Making whistle-blowing safe is another. Study after study has confirmed that insider tips—whistle-blowing—are the most effective way of detecting misconduct in organizations, beating out audit, management review, law enforcement, and everything else.

Despite the value of the information they provide, whistle-blowers in Canada are not adequately protected. Even internal whistle-blowing is punished, partly to send a signal to other workers and partly to head off external whistle-blowing to a regulator or the public.

Employers carry out reprisals, because they can get away with doing so. The most comprehensive whistle-blowing laws in Canada, which cover only the public sector, don't really work. I know this because my colleagues and I have been comparing them with best practices for years. Most private sector workers have no protection at all, outside of common law, which is a difficult and expensive route to take. A few laws exist in different sectors, but they're disconnected, ineffective or just unused.

For this reason, Tom Devine, one of the world's foremost experts on whistle-blowing, called Canadian whistle-blowing law “a tissue paper shield”, meaning that it is utterly useless and deceptive. In fact, as Mr. Drouin and Mr. McCauley may recall, he said so to OGGO almost four years ago as part of the review of the federal whistle-blowing law. That review led to a unanimous report recommending changes. Unfortunately, none were adopted. This sets us apart from many other jurisdictions, such as the EU, which has just recently required all member countries to implement new and better whistle-blowing laws.

To try to address both the short- and long-term challenges, our group arrived at three recommendations related to whistle-blowing: one, that a COVID ombudsperson be appointed to receive disclosures and inquiries, to direct concerned Canadians to the right avenues and to help resolve disputes; two, that an awareness campaign be launched to inform Canadians of their rights to speak up, and of the disclosure avenues available to them; and three, that existing whistle-blowing laws be rewritten to meet best practices and expanded to include both the public and private sectors.

In closing, I will say that nobody is served by the current state of affairs: not whistle-blowers, not the public, not organizations or the government. The key point is that protecting whistle-blowers ensures that wrongdoing can't be swept under the carpet. As the long-term care tragedy painfully illustrates, unchecked problems metastasize and can cost lives. Effective whistle-blowing systems allow problems to be identified, competently investigated and more quickly corrected.

Accordingly, we ask this committee to recommend immediate action to advise and protect whistle-blowers now and in the future.

Thank you.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Bron. I appreciate that.

Mr. Cutler, you have five minutes. Go ahead, please.

[Allan Cutler, President, Anti-Corruption and Accountability Canada and Member, Canadian COVID-19 Accountability Group]

Thank you very much, Mr. Chair and members of the committee.

You've heard from Mr. Bron, and I'm going to be saying some of the same things. I'm going to say some of them a little differently and in a more general way.

We all know we're in the middle of a pandemic and there's no precedent that's being followed, so we all know mistakes have happened and will happen, but what do we do about them? Everyone has an opinion on what should be done. Criticism is easy from hindsight, but people involved in it are trapped, especially when people won't confess to mistakes.

I talk to quite a few whistle-blowers, just as Mr. Bron does, and maybe I'm talking to them more actively right now. There are two issues that come up continually. One is the fear factor of what's going to happen to them if they speak out. In addition, right now they're afraid of losing their jobs. Jobs have been lost around the country. We have less of a workforce than we used to. They're saying, “If I speak up, I'll be the next one to go”, so they don't want to.

The other thing they're really worried about equally is retaliation. Along with that comes the issue of trust. Right now, I don't know of a whistle-blower who trusts any public official of any party. They're scared. The officials have lost the ability to have the public trust them.

The laws, as Mr. Bron said, are weak to non-existent. The federal law is not really very good at all. In particular, I'm going to make a point that none of the laws, to our knowledge, has the reverse onus that's critical in good whistle-blowing legislation. The reverse onus means that in the case of retaliation the employer has to prove they did not retaliate, rather than the whistle-blower proving there is retaliation. Who has the power? Who has the documents? It's the employer, not the employee.

There are three fundamental ethical principles I'm going to mention, which have been brought up before. They relate to procurement, but they also...which has happened vastly in here. The three fundamental principles are fairness, openness and transparency. The federal ombudsman has addressed this and it has been brought to the committees before.

There are four reasons to sole-source only. I know I'm deviating from just the whistle-blowing, but I'm getting into where the whistle-blowing has had some effect and some things have happened.

There are four reasons, one of which is urgency. With the pandemic, the government—provincial or federal—is totally right that it's urgent. You don't have time to go through the normal procurement practices to get what you want. The issues of fairness and openness exist with competition. Fairness is equal treatment to all bidders, and competition has to be there to do that, and openness is providing everybody a chance to submit bids.

The government has made some attempts to do that to the extent possible, but transparency never leaves. Transparency is providing information in a timely fashion. It never changes and it never leaves, whether it's competitive or whether it's negotiated. It never leaves with HR, or with any facet of our public life or our private life. We have to be able to get the information out and be protected in getting it out. Right now it's not happening.

ATIP, which is another part of it, is not.... ATIP is a great way to park the information and delay giving you anything you want. I've had a lot of frustration in getting information that should be freely given, and some of it's very simple.

In conclusion, I'm going to be short and just say that mistakes happen. We all know mistakes happen. Some governments have admitted this. The provincial government in Ontario admitted it should have kept giving shots to people during Christmas. They stopped for two days; they admitted it was a mistake. There is absolutely nothing wrong with admitting a mistake.

The other thing is that details are essential. When are we going to find details? What we seem to hear from many people is that sometime in the future it will be okay. That's the over-the-rainbow type of defence. Yes, we all know one day in the future we'll be okay. The last report I saw, done by an independent organization, said that we will actually be out of the pandemic about the summer of 2022. That's not acceptable. We should have definite information.

The whistle-blowers will talk to me, but they won't talk to anybody else because they're scared of speaking out. They also don't trust the media anymore.

I'll leave it on that note. It is essentially the same as where Mr. Bron left it. We need a national law that covers the private sector, the public sector and the not-for-profit. We need one national, solid, good law for all whistle-blowers for reporting all wrongdoing in this country.

Thank you very much.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Cutler.

Next is Mr. Holman.

You have up to five minutes, please.

[Sean Holman, Associate Professor of Journalism, Mount Royal University and Member, Canadian COVID-19 Accountability Group]

Thank you very much, Mr. Chair.

I would also like to thank the committee for once again inviting me to testify on how the public's right to know has been compromised during the pandemic, and what can be done about that problem.

I am a journalism professor at Mount Royal University in Calgary, where my research focuses on why we value information in democracies and the history of our country's freedom of information laws. As Mr. Bron mentioned, I am also a member of the Canadian COVID-19 Accountability Group, an ad hoc coalition of experts who joined together last year to recommend reforms to Canada's whistle-blowing and freedom of information laws within the context of the pandemic.

That expertise is why I am deeply troubled by the scale of secrecy we have seen from Canadian governments during the pandemic, which has only continued since I last testified before this committee. That secrecy has meant that the federal government has failed to provide the public and public officials with the data needed to track and account for billions of dollars in COVID-19 spending, including the costs and contracts for COVID-19 vaccines.

It's meant a failure to maintain the usability of Canada's already broken access to information system, and it's meant that the government has too often refused or delayed answering basic questions from the news media and the opposition about its pandemic response, from when vaccines will arrive in this country to whether the Prime Minister has spoken to the leader of one of the companies making those vaccines.

That secrecy didn't just start during the pandemic. History has shown that it is an endemic part of our system of government, no matter who holds power in Ottawa. It's because this system is literally built around the notion that decisions must be made in private. The Prime Minister said as much last month when he argued that the need for accountability and openness must be balanced against “an ability to grapple with very difficult questions in a fulsome way.” Since many of the questions government deals with are difficult questions, the result is very little transparency, something that is reflected and reinforced by the fact that everything that happens in cabinet, the government's principal decision-making body, is a secret.

This belief in the necessity of private decision-making has penetrated every part of government, from the highest minister to the lowliest bureaucrat. Not only does this attitude infantilize the Canadian public and degrade our democracy, but it also threatens the political and social stability of our country.

People want information because they want control and certainty. They want information so they can make better decisions about the world around them, thereby controlling public and private institutions. They want information so they can better understand the world, thereby feeling more certain about what's going to happen in it.

During an emergency, such as the one we're living through right now, this need for information accelerates. That's because Canadians want to make the best possible decisions to keep themselves safe, while ensuring that governments and corporations are doing the same thing on their behalf.

The costs of not providing this information are severe in the post-truth era. If there's an information gap, there is now a substantial risk that it will be filled with misinformation and disinformation, and we can see that in the anti-masking protests that have happened across the country and in the conspiracy theories those protests are based on.

This is why it is imperative that the federal government be more open with Canadians during this emergency. These times demand less secrecy, not more secrecy. The truth is the only counter to the lies that have become such a pernicious part of the public sphere.

To that end, the COVID-19 Accountability Group has recommended that the government be legally required to proactively release a number of broad categories of unredacted records within 15 days of their being prepared, including health and safety inspection reports, public health research and government contracts. There is no reason Canadians should not have access to the truth in these records, whether we're in a pandemic or not.

In combination with the whistle-blowing reforms recommended by my colleagues, we believe these measures will do much to ensure Canadians' confidence in the government and preserve evidence-based decision-making at a time when it's under threat of wrongdoing and abuse within the public sector.

Thank you so much for the opportunity to speak.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you very much, Mr. Holman.

We will go into our first round of questions. We will start with Mr. McCauley for six minutes.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks, Mr. Chair.

Gentlemen, welcome back.

First of all, I want to thank Mr. Bron and Mr. Cutler for doing so much work with us on whistle-blowers, and I want to thank the other committee members who were with us in the 42nd Parliament: Mr. Drouin and, of course, Mr. MacKinnon. Despite their best efforts, the government has dropped the ball and done nothing with moving forward on that legislation. Hopefully, one day we will, because I agree that it serves no one when we're hiding information.

Mr. Cutler, I want to start with you. What do you think it says about our country when both Trump's America—and, of course, it has changed over to Biden—and the U.K. have released details on their COVID contracts and we're continuing to refuse to release that information?

[Allan Cutler]

There's no reason why that information shouldn't be made public quickly. As you know, I deal in procurement extensively, and I love to read contracts. I'm a person who likes the details, not just “Oh, we have a contract.” I can say “We have a contract” about anything, but unless they give me details about it, it could be meaningless. They could have a contract with Pfizer, for example, and it's going to be two years before anything's produced, but unless they give me the details, I have no knowledge, really.

Generalities are “Trust us, please,” rather than “Here are the facts.”

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Bron, I'll ask you the same question. What do you think it says about our country, our government, when other countries are openly posting their contracts for vaccines, and we're still hiding behind commercial sensitivities or “It's a competitive world”, which we hear a lot?

[Ian Bron]

I would go back to Mr. Holman's comments about a long-standing culture of secrecy. I worked in government many years ago, and there was almost an attitude that people asking for information were acting a little out of line and out of place. What do they want this information for?

It's partly a result, I would say, of our highly oppositional Westminster system, and it's partly a result of a bureaucratic culture. It doesn't reflect well. As Mr. Cutler said, there's no reason why these contracts can't be put out in the public, why much of this information can't be put out there. The problem is that this capability was never built before in the past, and that needs to change in the future.

[Kelly McCauley, Conservative, Edmonton West, AB]

You bring the point about the PPE. I recall that when we were meeting over the summer, we heard about contaminated PPE or how they purchased one type of PPE but the wrong type shipped. The last I heard.... Here we are, seven or eight months later, and we still haven't gotten our money back. They are still protecting the name of the supplier for commercial reasons. We heard in July that they would announce all the names of their PPE suppliers. We still don't have those.

You brought up the point recently about The New York Times reporting that a large amount of PPE was coming from companies in China that were using forced labour. However, at the same time, our government refuses to release the information on where we're buying our PPE from in China.

In what world does this make sense? We denounce forced labour, but at the same time we won't come clean on where we're buying our PPE from, when the odds are in favour of some of it coming from forced labour.

[Ian Bron]

It's a bit strong to say it, but to me it suggests a little bit of regulatory capture. We have heard this before, governments of all stripes arguing that they have to protect commercial interests, when in fact government is a regulator and is supposed to hold companies to account when there are shortfalls or failings.

There should be no protection for a company that's not fulfilling its contract and that is acting in a way that harms the public interest. It doesn't make sense to me.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Holman, thanks for your input and for all the work you have done on ATIPs.

Across the country right now, which provinces are doing it well? Who's getting worse? I know that in the federal government we seem to be getting worse. Who's doing it better, and who across the globe in the free world is doing it better?

[Sean Holman]

I don't think any province in Canada right now is actually doing it well when it comes to transparency, because all of these measures, whether or not they're whistle-blowing, or whether or not they're freedom of information, are essentially coming from the same source. They're all relatively the same, so we encounter the same problems as we look at all of the jurisdictions across Canada.

What we should be looking at is how other countries are doing this, and how other countries are doing better. A quick example is New Zealand, which has been elevated internationally for its approach to dealing with the pandemic. One interesting thing that doesn't get as much attention as it should is the fact that it publicly discloses its cabinet records, proactively after 30 business days of final decisions being taken by cabinet. Other countries are more open than we are, and we need to follow the lead of those countries in bringing more openness and accountability to Canada.

If I could just add another thing.... You mentioned China. That's a really interesting example. The Toronto Star did some really good investigative reporting and found that many companies in Canada are actually importing goods that have been manufactured with forced labour. What's interesting is that the reporting was only possible because some of those import/export records are available in the United States. We don't have access to those import records in Canada—

[The Chair, Conservative, Robert Gordon Kitchen]

I hate to cut you off, but we're in a time constraint. Perhaps you can add to that answer at another time.

Mr. MacKinnon, you have six minutes.

[Steven MacKinnon, Liberal, Gatineau, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for joining us today, both in person and virtually.

I want to speak a bit about what, in fact, this government is disclosing, and what the public knows as a result of many of the disclosures that have occurred during this pandemic.

I'm speaking as Parliamentary Secretary to the Minister of Public Services and Procurement. The Translation Bureau is under our responsibility and is inundated with requests to translate documents destined for the general public.

The backlog we are currently experiencing at the Translation Bureau to provide public disclosure of COVID and other related documents is an overwhelming one. It's never been seen before. That is precisely because this government has agreed to disclose a number of COVID-related documents and provide extraordinary disclosures.

I do recall, and all members here will recall, the first motion we made to adjourn the House and to adjourn to hybrid sittings. It was one that called upon the Auditor General to do special examinations of the government with respect to COVID-related decisions.

The front page of The Globe and Mail today contains disclosures that are extraordinary and would never have been made outside of a pandemic-related circumstance.

Mr. Holman, you have noted the disclosures by the Canadian Armed Forces of conditions in long-term care homes, which, again, arguably, are extraordinary and would not have been made outside of pandemic-related conditions.

My posit—and I would like the witnesses to react to this—is that this government has gone above and beyond with respect to disclosures during the pandemic.

Many of the arguments are those that surround things like acquisitions and procurements of a sensitive nature. I would posit again to you, before turning the floor and the mike over to all three of you, that we are indeed in global competition for vaccines, vaccine supplies, personal protective equipment, and to disclose many of the terms.... Obviously, we have disclosed some of the terms of these contracts, an important number of them, but to disclose many others of these terms would have, in fact, posed the ethical dilemma of putting actual Canadian lives in danger.

I'll ask you to react to that, Mr. Cutler, Mr. Holman, and then Mr. Bron.

[Allan Cutler]

Thank you.

I obviously disagree somewhat with your premise. In terms of information being freely given, I have been dealing with access for many years now, and in the last two or three years, well before the pandemic, the system has ground almost to a halt.

I agree that it is much, much worse since then, because people are not working in their offices and there are delays in getting documents. That is totally understandable. It has to be, at least to some extent, judged as being acceptable. If you will, the delay is unacceptable; the fact that there is a delay is acceptable.

As for the government contracts, I have been dealing with government contracts for many, many years. I know exactly what documents are open and what are not. When you ask for a copy of a contract, certain information that is considered trade confidential is redacted, and that usually includes the actual cost, which is normal. However, a lot of information is not redacted, such as deliveries and who gets the contract, and that has always been considered open and easy to obtain through a request.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Cutler.

I think we'll go to Mr. Bron, if we can.

Unfortunately, we only have about a minute left, so if you both want to speak, you'll have to be quick. Thank you.

[Ian Bron]

For me, it's not so much an exercise in pointing blame at a particular incident; it's a situation that has evolved over many years. The capacity wasn't built up beforehand, and it needs to be built up now.

I'll turn it over to Mr. Holman to answer now.

[The Chair, Conservative, Robert Gordon Kitchen]

Mr. Holman, you have 30 seconds.

[Sean Holman]

You point out, Mr. MacKinnon, that the Canadian Army whistle-blowing is an example of transparency. It isn't. That information about long-term care homes only came out because members of the Canadian Armed Forces went to the media.

As my colleague Mr. Bron has pointed out, this situation is exacerbating a lot of the structural problems we have seen build up over years within both the whistle-blowing and freedom of information systems.

[Steven MacKinnon, Liberal, Gatineau, QC]

I would just point out that the armed forces had an actual formal report.

[The Chair, Conservative, Robert Gordon Kitchen]

Thank you, Mr. Holman. Thank you, Mr. MacKinnon.

We'll go to Ms. Vignola for six minutes.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Mr. Bron, in a crisis, decisions must be made quickly, and it's often necessary to “turn on a dime.”

How does the government's lack of transparency regarding vaccines and other procurement contracts affect our ability to address the issues along the way?

What are the potential implications for the bottom line in terms of the cost of the pandemic to taxpayers?