Government Operations Committee on April 19th, 2023

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

As I said, first of all, the purpose of the bill is to better protect the anonymity of whistle-blowers and witnesses in investigations.

I'll give you an example. The decision to disclose wrongdoing can have a major impact on someone's career. Those who take this step are seldom the only ones who witnessed the wrongdoing in question. Although corroboration is needed, other witnesses may not be at the same point in their personal journey. Therefore, even if the anonymity of the person making the disclosure is ensured, when the time comes to talk with the witnesses and investigate, if these individuals do not have sufficient protection, this will severely constrain the investigator's investigative authority. This is part of what we had in mind when we drafted the bill.

Another issue relates to the time limits. The current legislation states that a person must make a disclosure within 60 days after witnessing a wrongdoing. I am telling you this because you are going to hear from witnesses who have gone through this process and paid a high price. These 60 days provide an opportunity to ask oneself certain questions. Will I be serving the public interest, and acting in the best interest of the country and sound management of the government? Will I lose my job, be demoted, face harassment and so on?

Indeed, there may be reprisals. Sixty days isn't much time to make this decision. When you get a mortgage rate, it is frozen for three months. This is an important decision, so we want to extend this period to a year. I would say that, in this regard, one year is very little time.

There is also the possibility of referring the matter to the Auditor General. At present, when an individual witnesses criminal acts in the public administration, there is obviously recourse to the RCMP. In the case of gross mismanagement, there is no recourse to the Auditor General. As you know, the Auditor General has a unique skill set within the machinery of government and enjoys a unique level of independence with regard to gross mismanagement. This is part of the proposed changes to the legislation.

Lastly, we have an obligation to support public servants. When a public servant suffers reprisals, this person is being given the opportunity to have the reprisal recognized before being forced to bring the matter before the Federal Court at their own expense, thereby risking bankruptcy. These are major changes that are going to make the process much more effective and much less costly, both for whistle-blowers, who are simply doing their job, and for the government, which must manage the entire process, including the appeal and judicial processes.

This is part of the changes contained in Bill C‑290.

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

As you mentioned, it takes a lot of courage to make a disclosure.

Do you know whether any whistle-blowers have turned to the RCMP for help or have filed complaints with the police, but were unable to be heard in spite of their efforts?

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

I can't provide any specific examples right now to answer your question.

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

What have you learned from whistle-blowers? What have they told you about their experiences?

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

I would have thought that, in a developed country, their experience would be taken into consideration and their observations regarding the management of government would be viewed as expertise. When a person witnesses an irregularity, this becomes a kind of expertise that can be used to serve the government.

In academia, which is where I come from, expertise is valued. Several of the whistle-blowers who have sought my help, who have shared their accounts and with whom I have been in contact have been subject to reprisals, retaliation and demotions. We also need to consider the physical and mental stress that these people endure. They can lose trust in their employer. These are people who are loyal to their employer and who want the government to function properly. They want the government to serve Canadians. However, when they go through this process, these individuals and their families may suffer significant collateral damage.

To my surprise, in a potentially large number of cases, this loss of trust has caused individuals to avoid disclosing irregularities; these cases are therefore not included in the statistics. This is one of the problems plaguing the current regime.

I would have thought that these individuals' unique expertise would be welcomed. This has deeply shocked me.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Garon. That is your time.

Mr. Johns, you have six minutes, please.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thank you.

It's good to see you, Mr. Garon.

First, before I get started, I really want to commend you. I know you had a very high order of precedence for PMB. You had many things you could have advanced, and you put workers first. I really want to thank you for that. That's really important.

I want to thank my colleagues at this committee as well. They also want to advance the discussion around your bill so that we can fix it. We know that workers are going through a difficult time. Inflation is way surpassing their wages right now. People are on the picket line right now. They're struggling to make ends meet. Further exasperating that is the mental health they face when it comes to the challenges around the current whistle-blowing system.

We're really happy about this bill around the Public Servants Disclosure Protection Act and improving it. It's direly needed. As you've stated, we fall behind our peers in other countries in protecting public servants who disclose wrongdoing, so it's important. If we don't protect public servants who blow the whistle, wrongdoing stays hidden and we all suffer. Again, I want to thank you for moving forward.

Today is an opportunity for us to help strengthen the bill. We've had some time to consult with some whistle-blowers and some stakeholder organizations that advocate for them, and they've raised some concerns about the bill. Obviously, we want to bring them forward to help improve it, if we're to truly have a system that protects public servants who make disclosures.

This is, again, about improving the bill. One thing we heard is the reverse onus. That would mean that, when a whistle-blower goes before the tribunal to prove employer reprisal, the burden of proof would switch to the employer, who would need to show it had good reasons to take action against the employee, reasons that aren't related to, say, the whistle-blowing. This is the foundation of any decent whistle-blower protection act.

In your discussions with stakeholders and public servants, have you heard about this, that this was a priority? Did you choose not to include it in the bill for any reason, or has it posed any concern?

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

Yes, we discussed that, and the matter was also raised by a large number of whistle-blowers, including some who are here today. Indeed, it's one of the things that will have to be discussed. A reverse onus would be welcome if that is the committee's decision. Obviously, we would be very open to that.

With regard to the bill in its present form, there are some elements, one in particular, that would facilitate the process. For example, today, when you want to make a reprisal complaint, the matter must first be referred to the commissioner. If it is subsequently recognized that you have faced reprisal, the tribunal is where compensation may be awarded. However, if the commissioner does not determine that you were subject to reprisal, you have no further recourse than to appeal the matter to the Federal Court, which is extremely costly for an individual.

The current bill would allow the second level of recourse, the tribunal, to not only award damages, as is currently the case under the act, but also review the decision and thus provide a second opportunity to have the reprisals recognized before going through the formal court system. As I mentioned, this would give whistle-blowers an additional opportunity to assert their rights—one that would be less costly, faster and less damaging to their career, and would moreover facilitate processes within the machinery of government.

[Gord Johns, NDP, Courtenay—Alberni, BC]

I'm going back to the Integrity Commissioner and the investigations.

A concern around what's missing from the bill—and I'll ask you about it today—is the need for proper independent investigation of the wrongdoing that gets reported. Experts and advocates in the field have told me that we can't be confident in the investigations happening under the current act because the Public Sector Integrity Commissioner has always been a government public servant.

Do you believe that a public servant whose career and connections rely upon staying in the government's good graces is the best person to serve as the Integrity Commissioner? Do you think that a truly independent expert would be better able to carry out truly independent investigations of wrongdoing?

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

From our conversations with whistle-blowers and international legal experts who work on such regimes, we learned that the appointment process for commissioners often results in the appointment of someone from the machinery of government who is likely to return to it. This has been determined to be a problem. The bill does not refer to this explicitly, but during the appointment of commissioners, the government must pay careful attention to this aspect.

The current bill provides for recourse to the Auditor General in cases of alleged gross mismanagement. The Auditor General is independent and enjoys full confidence in matters of finance and management.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Another concern about the bill, which we heard from stakeholders and public servants and which they've raised again and again, is the need for injunctive relief. This would mean proactive protection of whistle-blowers from day one, when they first report the wrongdoing.

When whistle-blowers report wrongdoing, do you believe that it's important for them to be able to immediately obtain an injunction to prevent employer reprisal? Do you see it as a critical aspect of protecting them?

[The Chair, Conservative, Kelly McCauley]

I'm afraid that's our six minutes, but maybe you can answer in Mr. Johns' next round.

We'll go to Mr. Barrett for five minutes, please.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks very much, Chair.

Thank you to the witnesses for being here today.

I'm not sure how much time we have with bells, etc., so I have one thing to do before I proceed with my questions. I'd like to give notice of a motion that I'm not moving. I'll provide it to the clerk in writing in both official languages.

The motion is:

That the committee:

a) Invite the deputy heads from the following entities in relation to the redactions and improper translation of documents requested by the committee on January 18, 2023: Atomic Energy of Canada Limited; Business Development Bank of Canada; Canada Border Services Agency; Canada Development Investment Corporation; Canada Post; Canada Pension Plan Investment Board; Department of Finance Canada; Employment and Social Development Canada; Export Development Canada; Immigration, Refugees and Citizenship Canada; Innovation, Science and Economic Development Canada; National Defence; Natural Resources Canada; Office of the Veterans Ombud (Veterans Affairs Canada); the Privy Council Office; Public Sector Pension Investment Board; and TransMountain Corporation;

b) Invite the Office of the Law Clerk to brief the committee, in public, on the extent of the committee's powers to call for documents;

c) Instruct the Chair to send a letter to each of the entities listed in section a) of this motion to inform them that the committee is currently considering referring this issue to the House of Commons as a possible breach of parliamentary privilege.

Thanks very much for your patience.

Can you share examples of reprisals that whistle-blowers have faced?

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

I have been in touch with a number of whistle-blowers. Some want to disclose their identity, some are well known and some have agreed to tell their stories.

For example, there is one case where an individual had all their work taken away and had nothing to do all week; however, at 2:30 on Friday afternoon, the person was asked to do all the work that should have been done during the week. Some individuals having been followed home. Some have experienced psychological harassment.

When the whistle-blower starts to be ostracized in the workplace, this person becomes a pariah among their colleagues. When individuals at senior levels begin to dislike and ostracize the person, and engage in reprisals, employees, regardless of their position level, naturally tend to distance themselves from the person. They tend to isolate the person, remove them from teams and so forth. Direct reprisals occur, but there are also indirect impacts on the individual's quality of work life.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thank you very much.

Have there been individuals who have been mistaken for a public servant who made a protected disclosure?

What was the effect for those individuals?

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

A person who decides to disclose a wrongdoing may, in certain cases, want to remain anonymous. Other employees or the individual's immediate superiors try to figure out who made the disclosure. The witch hunt begins, but sometimes the wrong person may be accused and suffer reprisals.

This raises the matter of how to protect individuals who are mistakenly identified as whistle-blowers. In a sense, there are two aspects to the problem. First, we must ensure that people who have witnessed wrongdoing make disclosures and that they can trust the system. Second, it is necessary to ensure that within the government, no one is subjected to reprisals, where or not the person is legitimately considered a whistle-blower. No one should ever have to face reprisals.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thank you, Chair.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Barrett.

Mr. Housefather, go ahead for five minutes, please.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

Mr. Garon, thank you for being with us. Congratulations. I know that you always work very hard as a member. I am very pleased that your bill is being studied.

I am going to continue in the same vein as Mr. Fergus.

I am a little worried about removing the requirement that the disclosure be made in good faith and that the person have reasonable grounds to believe that they suffered reprisals. Mr. Fergus was trying to find a way to satisfy everyone.

Mr. Garon and Mr. Roche, do you agree that we should at least include the requirement that the whistle-blower should reasonably believe that what they are disclosing is true? I would not want a person to be able to disclose something that they believed to be false, even if it seems true on the surface. Perhaps there is a different way of wording “good faith”. Is that possible?

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

You're absolutely right.

Protecting people who disclose wrongdoing is not protecting defamation, and it does not mean we should allow a person to say anything they want about someone else. For our part, we were a little concerned about the legal consequences related to “good faith” as defined in the act, because this makes an assumption about the person's intentions instead of examining the basis for the complaint.

The definition you just gave—that the person reasonably believes that what they say is true—preserves, in a sense, the spirit that we sought to incorporate in the definition of “good faith”, while removing the presumption of the person's intention.

I think that that is a step in the right direction.

[Anthony Housefather, Liberal, Mount Royal, QC]

All right. That's great.

The bill also aims to add the requirement that chief executives support whistle-blowers. I think that this may be misunderstood by some people, who think that this involves money.

Can you explain to us what type of support is involved?

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

This is indeed somewhat ambiguous. It's one of the points made in the analysis by the clerks of the House, who indicated that a royal recommendation was required. There were two reasons for this. If I may, I would like to take a little extra time to address this, without sidestepping the question.

The fact that we would like to expand the application of the act to include government contract workers and add a duty to provide support, which could be interpreted as financial support, could lead to the possibility of a royal recommendation being required. Therefore, we will propose amendments to tighten that up.

When someone files a complaint, we want to make sure that the system supports them properly, through logistical means that are inexpensive, in the sense that they do not require new financial allocations by the government. That is what we mean by support.

We will propose a clarification on this.

[Anthony Housefather, Liberal, Mount Royal, QC]

Perfect. An amendment will be proposed, then, to define this support and specify that it is not financial.

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

That is correct.

[Anthony Housefather, Liberal, Mount Royal, QC]

All right. That's perfect.

You talked about support for contractors, and I have a question to ask you about that.

I believe that at least a certain percentage of contractors are subject to provincial law, if I am not mistaken.

Wouldn't it cause a jurisdictional conflict if contractors were included in exactly the same way as employees?