Government Operations Committee on April 19th, 2023

[The Chair, Conservative, Kelly McCauley]

Colleagues, good afternoon. I call this meeting to order.

Welcome to meeting number 61 of the House of Commons Standing Committee on Government Operations and Estimates.

Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, the committee is meeting on the study of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

With us we have the creator of the bill, MP Jean-Denis Garon. We will have an opening statement from you for five minutes, sir.

Go ahead.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

Fellow members, thank you for having me. It is a privilege to come before you today to present my bill, Bill C‑290, An Act to amend the Public Servants Disclosure Protection Act.

This is an important moment for me and for many whistle-blowers. This is a historic moment.

For more than 20 years, we have had few opportunities to improve the whistle-blower protection regime within the federal government. I would add that sound management of public finances and government as well as restoring public confidence in the government are deeply non-partisan issues.

We already have a public servants disclosure protection act, but it is flawed, unfortunately, and has at times led to a breakdown in the trust between prospective whistle-blowers and the government. Moreover, according to the independent U.S. organization Government Accountability Project, the Canadian act is one of the weakest of its kind among countries that have this type of legislation. In fact, Canada is ranked behind Lebanon, Rwanda, Pakistan, Bosnia, Tunisia, Uganda, Kenya, Zambia, Kosovo, Namibia, Serbia and many others. This is a problem for a G7 country, a G20 country, an OECD member country and for a democracy that is expected to have sound institutions.

This bill seeks to strengthen the mechanisms that protect the anonymity of whistle-blowers and includes additional categories of public servants in the system. It also seeks to better protect the identity of witnesses who participate in investigations. The bill will increase the obligation to support public servants who disclose wrongdoing and will give them more time to file a complaint. At present, the limitation period is much too short. Disclosing wrongdoing is an extremely demanding process; it can take more than 60 days to decide whether to proceed. The bill will simplify the appeal processes that whistle-blowers can use in the event that they face reprisals. It will also make it possible, in cases of mismanagement, to refer the matter to the Auditor General.

I wish to point out that the current legislation came into being in the wake of the sponsorship scandal, which was exposed thanks to the expertise of the Auditor General, expertise found in few other places within the federal government.

The intent of the bill is to restore confidence between the public service and the federal government, which is extremely important. Whistle-blowers are very courageous individuals who want to better protect the public. The decision to disclose wrongdoing has an enormous impact on the whistle-blower's life.

Over the course of its review, the committee will meet with witnesses whose lives have been shattered by this process. These individuals placed their trust in the process, but it is seriously flawed—as we will see during the clause‑by‑clause review. They ended up being punished for doing good and for wanting to serve Canadians, Quebeckers, taxpayers, democracy at large and our institutions. In some cases, these individuals were even placed under surveillance. The committee may meet some people who are afraid to come before the committee, who fear reprisals. It is this type of situation that we need to address; our democracy depends on it.

By protecting whistle-blowers, we are safeguarding democracy and sound management, as well as the government. Scandals should not be used as a management tool. We cannot wait for a scandal to occur before making adjustments to legislation.

We need to put mechanisms in place to ensure that Canadians who witness irregularities are better served by government institutions, and that is the very intent of the bill that I have introduced in the House of Commons.

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thank you very much, Mr. Garon.

Colleagues, before we start our first round, there will be bells at 5:30. I'll do the customary ask in advance for unanimous consent to continue to about five minutes to six. Hopefully, we'll be able to get through Mr. Garon as well as the opening statements from our witnesses for the second hour before we suspend.

Are we good with that?

[Some hon. members]

Agreed.

[The Chair, Conservative, Kelly McCauley]

Thank you very much. I appreciate that, colleagues.

Mrs. Kusie, you're opening for six minutes, please.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you very much, Mr. Chair.

Thank you, Mr. Garon, for being here today, and for the work you did in developing Bill C‑290, work that the government decided not to do.

What do you think are the reasons why the government decided not to implement the recommendations from the committee's 2017 report?

[Jean-Denis Garon, Bloc, Mirabel, QC]

It is difficult for me to speculate on the government's motivations, and that is not the purpose of my appearance today.

Keep in mind that the Standing Committee on Government Operations and Estimates produced a report several years ago. What is interesting is that a high level of consensus was achieved regarding this report. It was supported by dozens of briefs, and very credible and knowledgeable witnesses.

The provisions in my bill draw to a great extent on that report. In the opposition, we do not have the same means available to us as the government. There is the matter of expenditures and royal recommendations. We cannot suggest, for example, that lawyers' fees, which can sometimes… As you know, taking a case all the way to the Supreme Court can cost up to a million dollars and push people into bankruptcy. These individuals are effectively helpless. That option wasn't available to us.

Many, if not all, of the measures in the bill achieved consensus within the Standing Committee on Government Operations and Estimates.

I'd like to explain, if I may, the reason I brought this bill forward. Shortly after I was elected, in 2021, I was shocked to receive phone calls and emails from whistle-blowers who had witnessed wrongdoings, alleged wrongdoings. As you know, I'm not an investigator. I asked them why they didn't disclose this information themselves, and why they weren't using the processes that were in place. Many of them answered that they knew people who had taken the risk, and that it had ended their career and their life. Their physical and mental health suffered.

Under the current regime, individuals who witness wrongdoing are worried about losing their job, their income, their homes.

When I looked into the act, I came across this committee's report and the reports in which disclosure systems are ranked. When you read these reports, you see how obvious the flaws are. When you want to travel down a road but it's full of potholes, it's impossible to reach the end without falling into at least one of them and suffering serious injury. This is when I said to myself that introducing this bill was in the public's interest.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

That was my next question. What was your source of inspiration for this bill? Was there something in your personal history that motivated you to introduce it? Thank you for answering my question.

Now I have some other questions.

You decided to add some portions of the 2017 report to the bill. Why did you choose those particular parts of the report and not all of it? What criteria did you use in choosing some parts and not others?

[Jean-Denis Garon, Bloc, Mirabel, QC]

There are three reasons that influenced our decision.

The first reason has to do with the constraints we face in the opposition. This was a big part of the equation.

The second reason relates to my strong desire to have a consensus-based process that would lead to the passage of this bill. I am convinced that this is possible. We are obviously open to amendment proposals during the discussions. The portions of the committee's report that we retained are the ones that are very likely to lead to a consensus.

Obviously, there is a cost associated with this work: we need to keep in mind that a lot of work remains to be done. We have been waiting a long time for changes that can be made simply and effectively. Any step in the right direction would be welcome, and this bill will allow us to get several steps closer to our goal.

Those are the main reasons that led us to introduce the bill in its current form.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

After this bill passes, what are the next steps for the current government and subsequent governments?

What do you think of the working group that was established to review the Public Servants Disclosure Protection Act?

[Jean-Denis Garon, Bloc, Mirabel, QC]

The whistle-blowers issue does not receive enough attention in the news. It's a topic that is often swept under the carpet. Soon after the bill was introduced, the President of the Treasury Board accelerated matters so that more consultations would be held. There are two things I want to say in that regard.

First, I am very happy that we are talking about these courageous men and women who disclose wrongdoing and want to improve public sector management. This was the first effect of the bill. Already, it is a success. If the government wants to hold consultations, it can do so. It can call on experts, and later, it can continue to strengthen the legislation such that royal assent will not be required.

However, these two processes are not mutually exclusive. The consensus-based measures in the bill can be adopted while consultations are still being conducted. The President of the Treasury Board recognizes that that this should be an ongoing process and that the work is never really completed.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you very much.

Thank you, Mr. Chair.

[The Chair, Conservative, Kelly McCauley]

Thanks very much.

Mr. Fergus, welcome back to OGGO. You have six minutes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair, for your welcome. That's very kind of you.

I would also like to congratulate my colleague, Mr. Garon, for taking the initiative of introducing Bill C‑290. As the member has just said, this is a tremendous opportunity to reach a strong consensus among all political parties on how to enhance the legislation.

Mr. Garon, I have a few questions for you about certain elements of your bill. A number of the proposed changes involve removing certain restrictions in the act that are intended to prevent overlap with other legislation or organizations. For example, the bill would remove subsection 19.1(4), which prevents individuals from availing themselves of a procedure under another act or a collective agreement when they file a reprisal complaint.

Do you think that the removal of this restriction would lead to significant overlap between recourse mechanisms?

[Jean-Denis Garon, Bloc, Mirabel, QC]

The purpose of the bill is to give greater recourse to an individual who discloses wrongdoing, and I believe that, overall, it does exactly that.

This said, the bill is complex, given that the protection of whistle-blowers has implications for many different branches of the public service. It has a very wide reach. Therefore, I believe that amendments should indeed be made to it. Everyone is aware that work needs to be done in this area.

Furthermore, the Treasury Board and the government have a role to play in all of this. The machinery of government is complex and involves many interactions. It will be helpful, even necessary, to hear from public servants on this topic. We are obviously open to hearing their views.

This said, it should be understood that certain mechanisms are provided for in collective agreements; however, this should not be used as an excuse to avoid making laws in relation to this matter. For many years, in some cases, unions have had to make up for the deficiencies in the current regime. Minimum standards must be set out in the legislation.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

In your bill, why have the references to good faith and to reasonable grounds been removed from the sections of the act that relate to the preliminary review?

Mr. Roche, would you like to answer my question?

[Marc-André Roche, Researcher, Bloc Québécois]

Good afternoon. Thank you for your question.

The references to good faith are related to the whistle-blower's intentions. In some cases, a whistle-blower may have seen things they did not like for years, and it may be thought that, in disclosing these things, the whistle-blower is trying to hurt the colleagues involved.

However, it is not our role to determine whether, by filing a complaint, this individual is seeking to help or harm a colleague. What matters is determining whether the complaint is justified. Complaints must be judged on the facts, not on the intentions ascribed to the complainant. It is too easy to disregard someone based on the assumption that their intentions are bad. Therefore, we removed these arbitrary elements so that complaints will be judged on their own merits instead of the person's intentions.

If the person is likely telling the truth, whatever their motivation, an investigation and protection are warranted.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Isn't there a risk that the removal of these words could lead to frivolous or intentionally malicious disclosures?

[Jean-Denis Garon, Bloc, Mirabel, QC]

I think that, at present, the concern is that the provisions you are referring to could prevent the process from moving forward. That is our concern.

The objective of the bill is to improve the quality of the management and administration of public funds. If the complaint itself is justified, any government that wants to improve its processes has an obligation to proceed with the complaint.

In its current form, the provision you're referring to can prevent us from improving management processes in the public sector under the pretext that a person's intentions have been determined. The cost of maintaining this provision as it stands appears to outweigh the benefit.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I am short on time.

Would it be possible to find a middle ground in order to come up with something reasonable?

[The Chair, Conservative, Kelly McCauley]

Give just a brief answer.

[Jean-Denis Garon, Bloc, Mirabel, QC]

It is always possible to develop amendments or find other ways to rewrite the provisions of the act, provided it doesn't run counter to the objective.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Fergus.

We have Mrs. Vignola for six minutes, please.

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

Thank you, Mr. Chair.

Thank you, Mr. Garon. Thank you above all for introducing this bill.

In the last Parliament, we expressed the intention of examining this legislation, but then 2021 happened and it wasn't possible to carry out a review. You are forcing us to review the act, an undertaking that is well-received, particularly by public servants.

You have already stated your reasons for introducing the bill. For educational purposes, I would like you to provide a brief comparison for us, as clear and concise as possible, of the current act and the legislation that would result from the bill you have introduced in the House.