Government Operations Committee on April 26th, 2023

[Joanna Gualtieri]

That's an excellent question.

Listen, I joined the public service in 1992. My sister is also in the public service, and I've had other extended family members in the public service.

I think that there has been a decline in the public service for many decades now. Increasingly, there was a concentration of power into the PCO, into what, at that time, we called the mandarin class. This has effected a strangulation on good, hard-working public servants.

My discussion here today is by no means an assault or a denigration of public servants, because most of them want to do a good job. The question is this: Can they do a good job? People cannot engage in whistle-blowing with the stakes being so high, so how do you change the culture?

Generally, historically, culture is changed when the people at the top decide that they're not going to tolerate the kind of abuse that's going on in the public service. I urge you to look at the surveys that started with Treasury Board in 1998. In my department, foreign affairs, the harassment rate was 25%. No private industry could operate with a 25% harassment rate. It's important.

I believe Mr. Fergus raised this issue. Somebody asked about disability. There is a huge number of people in the public service on short-term and long-term disability. What is not disclosed, generally, is that the public service self-funds the disability. It is not Sun Life that is the administrator of it. No, it is taxpayers. They lose when the wrongdoing happens. They lose because of the inefficiency of government, and then they lose when people go on long-term disability. The taxpayers are funding that.

The culture needs to change through a revolution at the top and when people are encouraged to be creative, to contribute and to make their highest contribution.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you.

I have about 40 seconds left, and I'm going to give you that 40 seconds because you said that you wished you had addressed the burden of proof side.

Here you go. You have 45 seconds.

[Joanna Gualtieri]

Burden of proof is a very straightforward concept, really.

Generally, when you go into a legal action, the burden of proof rests with the complainant. With whistle-blowing legislation, it shifts the burden. In this instance, it would be to the government, which would have to prove that it did not retaliate because the person blew the whistle. It changes everything. It gives the whistle-blower a winning chance. Without that shift, they won't prevail.

[The Chair, Conservative, Kelly McCauley]

That is our time.

Thank you very much for your time with us, Ms. Gualtieri. It's always a pleasure. Thank you for bringing up the reverse onus. I know from past studies that it's always come up as the number one issue that we need to bring in, so thanks very much.

Ms. Dion, thank you, again, for your time with us. It is greatly appreciated.

Colleagues, we're going to suspend for a couple of moments while we switch out witnesses.

[The Chair, Conservative, Kelly McCauley]

Colleagues, we are back in session.

I'd like to welcome our two witnesses, who, I will say, are long-time friends of OGGO. Mr. Bron and Mr. Hutton were a great part of our last study and other studies on whistle-blowing.

Gentlemen, welcome back. My sincere thanks for joining us today.

I understand you each have five-minute opening statements.

Mr. Hutton, you can go ahead, please.

[David Hutton, Senior Fellow, Centre for Free Expression]

Thank you.

Thank you to the committee for hearing us. I really appreciate it.

I have to confess that I feel very nervous today. I don't usually, and I think the reason is that there's so much at stake here. We have such a huge issue. I think the committee's beginning to realize that. We've heard some wonderful testimony, and I want to try to build on that.

I've been working in this field since before the PSDPA was introduced, and I've been studying, monitoring and reporting on this act for 17 years now. I've run a whistle-blowing charity for six years and operated a help-line, and I was contacted by more than 400 whistle-blowers. I soon realized that there was a very consistent pattern to the reprisals. Luc Sabourin's experience and Madam Dion's absolutely fit that pattern. You should not doubt a single word of anything they told you about what they experienced, because those experiences are absolutely typical.

Reprisals are, obviously, initiated by the wrongdoers, who are typically ruthless and determined to protect themselves. However, they are aided and abetted by management, who see their primary duty as protecting the organization's senior leaders and their reputations, so their instant knee-jerk reaction to most problems is simply to try to cover them up.

From the moment whistle-blowers begin to question what is going on, they are tagged as threats to the organization, as troublemakers to be dealt with, and all efforts are focused on destroying them to send a warning message to others. The consequence of failing to protect whistle-blowers is that we fail to protect ourselves, because the wrongdoers prosper, gain more power and go on to cause even more harm.

There are two examples that Ian and I are very familiar with. In both cases, incompetent management bungled an early project, but by silencing the whistle-blowers, they were able to cover up their errors and appear successful. They went on to be rewarded with greater responsibilities, which they also bungled, causing truly major disasters. I'm referring to the Phoenix pay project and the Lac-Mégantic rail disaster. The trajectories are almost identical.

In both cases, the cover-up continued even after the major disaster. The organizations failed to understand properly what went wrong, and no one was held accountable. Consequently, the necessary corrective actions have still not been taken. They continue to blunder, and we continue to pay the price in various ways.

I think you already know that the PSDPA is an appallingly bad piece of legislation, but you may not realize how bad.

I've studied it, and the reports I've written, going way back to 2012, have identified more than 40 problems. We cannot possibly fix all of these, but we can intervene surgically to make it work better. Decades of experience has taught us that combatting corruption with the help of whistle-blowers requires a complete system of protection with well-defined components. It's like a car—we've heard that analogy already—which, at a minimum, needs about five components. There is an engine, a gearbox, a set of wheels, brakes and—what have I forgotten—a steering wheel. Which of these components can we dispense with? None of them. If any one of those is defective, the car is immobilized. It becomes a useless lump of metal.

In the same way, we have set out five categories in our criteria, describing the important components of a whistle-blowing system: freedom to blow the whistle without a whole lot of barriers, obstacles and traps so that people can raise the alarm; protection from reprisals from the moment people speak out; and redress for reprisals so that, if they do occur, they can obtain a remedy. Those are the three things that are necessary for the whistle-blower to do their job. The fourth category is protecting the public, and this requires stringent, independent and thorough investigations followed by corrective action that's actually put into place. The fifth one is, perhaps, not quite so obvious, but this is the measurements and information that allow you to see that the system is working because, without those, you have no means for monitoring or for determining what needs to be improved, so you're crippled there.

All of those five categories have to work for the system to work. In the case of the PSDPA, none of them work—none of them.

We have a challenge here to get them all working, and we can help you with that.

I'm going to suggest that Ian pick up the baton here.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Hutton.

Go ahead, Mr. Bron.

[Dr. Ian Bron, Senior Fellow, Centre for Free Expression]

Good afternoon, and thank you for inviting me to speak.

I've studied whistle-blowing for over a decade, but just as importantly I was a whistle-blower in 2006. A former naval officer, I joined the federal public service after the 9/11 attacks. I quickly rose to be chief of transportation security regulations at Transport Canada. After witnessing serious misconduct and naively believing that I would be safe, I blew the whistle. This is before the PSDPA came into force, but I don't believe it would have protected me anyway.

The reaction was overwhelming as the resources of the entire department were swiftly mobilized against me. I was falsely accused of security breaches and harassment. When a colleague and I fought back using the grievance process, the complaint was heard by one of the implicated individuals. It was maddening to experience so many abuses of authority assisted by human resources and the department's integrity officer.

The cost and stress destroyed my finances, further damaged my mental health—I already had PTSD from my military service—and ended my marriage. It took me six years to escape this nightmare. Sadly, my efforts achieved nothing. The people and practices I was reporting remained in place, directly contributing to the conditions that allowed the Lac-Mégantic rail disaster to occur.

One positive aspect of this experience was that I met fellow whistle-blowers. The similarities in our experiences made me curious, so I began to study the phenomenon. My Ph.D. dissertation examined whistle-blowing regimes in the U.K., Canada and Australia. I read the literature and interviewed dozens of whistle-blowers, officials, advocates, unions and academics. I scoured legal databases and official records. This helped me understand how whistle-blowing regimes are supposed to work, how they actually work and what is creating the gap between expectations and reality.

Experience has now accumulated to the point where we can refer to numerous best practices. We developed our own best practice document at the Centre for Free Expression, based on these international standards and our own experiences. Using this, I've been assessing provincial whistle-blowing laws for about a year, and I've completed five assessments so far.

After going through both the PSDPA and Bill C-290 painstakingly, my conclusion is that the PSDPA fails every major category of our criteria. As Mr. Hutton has observed, critical failures render it useless to nearly all whistle-blowers.

Bill C-290 does significantly improve the PSDPA and is an excellent start, but it is not enough to make the PSDPA effective, and there remain some critical failures.

First, many people who believe they are protected will not be protected because of the requirement for magic words—that is, if their disclosure is not said in exactly the right form or to exactly the right person.

Second, there is still no duty to actively protect the whistle-blower from the instant they speak up. Instead whistle-blowers must endure reprisals, typically for years, before they can even apply for some form of redress. By this time, most are broken and give up, and the public interest issue dies.

Third, there is no interim relief from reprisal for whistle-blowers. Perversely, there is interim relief for those accused of reprisals.

Fourth, the Integrity Commissioner still doesn't have any special powers to investigate complaints of reprisal, so departments can simply stonewall.

Fifth, processes to correct the wrongdoing remain fundamentally flawed as there is no standard for competence or timeliness of investigations. Departmental investigations are especially vulnerable to interference.

Sixth, while the requirement for five-year reviews is positive, measuring or auditing the performance of the regime is still impossible.

In sum, whistle-blowers remain consistently disadvantaged, and wrongdoers get the benefit of the doubt.

To properly fix the PSDPA will require more changes. In general, future revisions must approach the law with a different mindset. Protecting the whistle-blower must be the priority, not an afterthought, because keeping the whistle-blower safe ensures that the wrongdoing isn't swept under the carpet. Investigations should meet standards of competence and be completed in a reasonable time. Whistle-blowers should be able to rebut evidence from implicated officials.

I'll conclude with an important point that's sometimes missed by people who haven't experienced a reprisal. Whistle-blowing systems must be designed for the worse-case scenario. Whatever limits you might imagine would temper reprisals, such as structural and legal checks and balances, common sense or even normal human decency, discard them from your minds. Whistle-blowing regimes must be constructed as if those implicated will ignore such constraints, because the more serious the wrongdoing and the more powerful the wrongdoers, the more likely that is to happen.

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Bron.

We'll start with Mrs. Block, please.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Mr. Chair.

I want to thank both of you for joining us today. It was great testimony. Also, I read through the documents that were provided to us, and I appreciate your expertise on this issue.

Last Wednesday, when asked by Ms. Vignola whether if he were to start over again he would have blown the whistle, Mr. Sabourin stated that he would have but perhaps in another way. He mused that he would put everything in an envelope and send it to the media because he felt that the system had let him down and abandoned him.

Here we are today discussing this issue at a time when, very recently, the media has reported on receiving information from someone at CSIS alleging foreign interference in our elections. Sadly, it would appear that the Prime Minister is more seized with finding out who that individual was or is, rather than the nature of the allegations.

In her testimony and a written submission, Ms. Forward states, “Legislation alone will not protect whistle-blowers. The overriding factor for success is culture.”

I shared in the previous panel that I am very familiar with an old saying that culture eats strategy for breakfast. I'm not sure if it eats legislation for breakfast, but I'm wondering if you could share with us your thoughts on how we change the culture in the public service.

[David Hutton]

I'll speak to that first. I think we have to start with the law. The sequence that I've heard is informed public outrage, which leads to enormous pressure on politicians, which leads to law. That's the sequence, and that's what we're seeing in other countries. We have no shortage of scandals that should have caused outrage in Canada, but we haven't had people in the streets and people going to jail.

I can assure you that, if the law is changed so that some of these wrongdoers suffer consequences, that will be the start of a significant culture change throughout the whole public service. The very first time that it happens, the message will go out like a cannon shot.

In the U.K. not so long ago, the CEO of Barclays Bank was personally fined over $600 million. His crime was not the wrongdoing he was accused of, because that was not considered serious. It was attempting to uncover the whistle-blower. He went to great lengths to find out who the whistle-blower was, and you can imagine what his intentions were. He was fined more than $600 million for doing that. That sends a signal, and that might cause other CEOs to think twice about launching a campaign to find the leaker.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

[Dr. Ian Bron]

If I could add anything, it would be that, if you want to improve the culture at the top of the public service—and I'll agree with the previous witnesses that this is where it probably needs to happen—you would want to also have a look at the way they're socialized. You would want to look at how they're hired, socialized and incentivized because, as it stands right now, senior public servants are mainly rewarded for making problems go away and not for fixing the problems, necessarily.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Mr. Bron, in your assessment of Bill C-290, you made the observation that the improvements this bill make may “act as a Trojan Horse, luring unwitting whistleblowers with illusory protection.”

I think the last thing we want to do is have the appearance of doing something when, in fact, we're not. We want to address doing nothing, but we don't want to pretend or be fooled into thinking we're doing something when we're not.

You identified the five categories that are needed in order for whistle-blowing protections to be effective. How can we improve this bill right now so that it offers substantive protections to whistle-blowers?

[Dr. Ian Bron]

Are you asking for a specific list of fixes?

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

I am asking for two recommendations. We need some recommendations to go forward with in order to improve this bill so that it isn't in fact a Trojan horse.

[David Hutton]

We keep hearing this request for one or two things, and you got a good answer: Pass the bill. The second thing is to make the bill stronger.

Clearly, in our judgment, there's no possibility of substantially changing the outcomes of this bill, which are totally unacceptable without some significant changes. We have some ideas for some changes that can be implemented within the limitations of the rules here for a private member's bill, but there are going to be some that are really important that we can't address. They are going to be critical, and if those are not fixed, the system will still not work properly.

What we suggest you do is take on the task of identifying those as well, knowing that they will not make it into the private member's bill but that they are something that the committee can also report on if you so choose, because you're going to have plenty of opportunity to do that. You're going to hear some wonderful testimony from Tom Devine, who has been a tremendous support to us and has helped us with our criteria, and from other people, such as from Anna Myers. You're going to hear from some people who are extraordinarily knowledgeable and who will help you to identify what needs to be done.

[The Chair, Conservative, Kelly McCauley]

Thanks.

Ms. Thompson, go ahead, please, for six minutes.

[Joanne Thompson, Liberal, St. John's East, NL]

Thank you, Mr. Chair.

Welcome back, certainly, to committee, Mr. Hutton. It's nice to see you again.

Mr. Bron, thank you for your opening words. I am quite touched by what you've gone through and very sorry that you have had to go through this.

I certainly appreciate that this is an opportunity to take on a piece of legislation that's incredibly important, with some restrictions because it is a private member's bill.

I will ask both of you to respond to this and maybe, Mr. Bron, you could go first. In light of the work the committee can do, what would you like to see the committee bring forward that would strengthen the impact of the whistle-blower legislation?

[Dr. Ian Bron]

I'm going to echo what was said by previous witnesses. The reverse onus is probably the most important and easiest fix, but I also think that this committee can do a lot by amending the law so that there's a mandatory review every five years, using meaningful performance measures and tying the government into a continuous cycle of improvement. Only that way can you ensure that the whistle-blowing act continues to remain evergreen and improves over time, because there will always be holes in the law.

[Joanne Thompson, Liberal, St. John's East, NL]

Could I just jump in for one second before you answer Mr. Hutton?

Mr. Bron, when you spoke just now about the continuous cycle of improvement, does that link into your earlier comment about the measures and the monitoring that are necessary as part of the five steps?

[Dr. Ian Bron]

Yes, it does. There was, at one point for the PSDPA, a primitive logic model and performance framework. It was developed in 2008 and then promptly abandoned.

You need to know where the weaknesses are in this system if you're going to fix them. That just doesn't exist. Nobody collects any meaningful data.

[Joanne Thompson, Liberal, St. John's East, NL]

Mr. Hutton.

[David Hutton]

Yes, you're clearly hungry for very specific answers rather than generalities, and I'll throw out a couple of them.

One we've mentioned already is what we call “interim relief” in the act. We first thought that was for the whistle-blower, and then we read it more closely and realized it was for those accused of carrying out the wrongdoing. They are fully protected—not a hair on their head could be touched while the process unfolds. There's nothing equivalent for the whistle-blower.

We suggest that you take that provision, and just change it a little bit to make that relief open to everybody, to all the parties: the alleged wrongdoer, the whistle-blower and the alleged reprisers. That seems to be a very simple thing to do. I don't think it's going to cost money. It seems fair.

The other thing you must do as you do that is to make that unconditional and immediate from the point that the disclosure is made and not under the control of the the Integrity Commissioner, at their discretion and late in the day after reprisals have occurred. I think that's perhaps a very simple way of turning the tables on this legislation, which had a different intent.

The other suggestion I'll make is a very specific one. It is that the ability to go public is often very constrained. There's a person in Australia, A.J. Brown, who has done some wonderful research over decades in this field and whom perhaps you're going to hear from.

His research showed that, in Australia, when looking across all the different states and the laws they had, some of the laws that didn't seem very well written were actually performing quite well. As they drilled down to try to figure out why, they realized it was due to one particular provision that appeared in several of them. It was basically that, if the system to investigate and protect the whistle-blower didn't work, then the whistle-blower could go public. It was defined this way: If it took too long, if they were told there was going to be no investigation or if they were told that nothing was going to happen, then they could go public after a certain length of time.

What that does is it kind of turns the tables. The typical strategy of the agencies that are supposed to be protecting the whistle-blower is to delay, to do nothing, to keep them in the dark and to reassure them that things are going along, and then nothing happens. Cases have sat in the Integrity Commissioner's office for literally years without attention.

It turns the table on them. What has happened in Australia is that the officials who are responsible realized that their worst nightmare—publicity—might result if they didn't go on and do their jobs and deal with the case. It doesn't cost money they don't currently have to do that either.

[Joanne Thompson, Liberal, St. John's East, NL]

Thank you.

Mr. Hutton, do you feel that the PSDPA should exist as the best avenue for whistle-blowers to disclose wrongdoings?