Government Operations Committee on April 26th, 2023

[David Hutton]

They currently have no alternative. Some of our witnesses in 2017 suggested scrapping it altogether because it's so complex, convoluted and full of traps. However, I don't see anybody putting forward any proposal like that, so I think we have no choice but to try to fix it.

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

Thank you.

Mr. Bron, if I could go back to you for a moment, I believe you referenced the importance of keeping whistle-blowers safe. Certainly, we've heard some fairly disturbing comments from witnesses who have gone through this process, and it has absolutely destroyed or damaged their lives with lasting implications.

How do you realistically keep a whistle-blower safe in the very real world of having to really speak your truth to power and hold that truth as, often, the only voice in the room?

[Dr. Ian Bron]

Mr. Hutton has already spoken to one, and that is the interim relief. If you can intervene to stop any disciplinary processes, that is certainly one. The other one is to have avenues for redress that are easily accessible and that serve as a kind of deterrent to people who might make reprisals. Of course, there are things that already exist such as confidentiality and allowing for anonymous disclosures as well. Those would also be helpful for people who feel too endangered to identify themselves.

Those are the three big things. There are smaller things you can do as well, such as separating the whistle-blower from the reprisals.

[The Chair, Conservative, Kelly McCauley]

Thank you very much, Ms. Thompson.

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

Thank you.

[The Chair, Conservative, Kelly McCauley]

Ms. Vignola, you have six minutes, please.

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

Thank you very much, Mr. Chair.

Mr. Hutton, I have a lot of questions that come to mind. You talked about Australia and the right of whistle-blowers to make their disclosures publicly when the delays are too long. Are there any numbers on those delays? If so, what are they?

[David Hutton]

There will certainly be information available about that. A.J. Brown has published all kinds of research over the years, and that would be pretty easy to find out. That was introduced.... I can't say exactly how long ago, but there's certainly been a few years of experience, so that we would know how that was working. I'll just point out that his research showed that it was already working in a number of states, and that's why it was introduced more broadly.

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

Okay, thank you.

You both mentioned Lac-Mégantic. I also know that there was a derailment in Prescott. In the Prescott case, I learned that someone had sounded the alarm and raised the possibility of a derailment there, but no one listened to them.

Why don't we listen to the “juniors” and do what we want, why crush those who want to improve the system? What's the reason for this culture? How could we actually change this culture so that situations like the ones Mr. Sabourin, Ms. Dion, Ms. Gualtieri and Mr. Bron mentioned never happen again? How do we do that?

[David Hutton]

I describe this phenomenon like cancer, and I described, when I was introducing this topic, how wrongdoers get away with things. They get promoted. They get more.... These are people who are, typically, both incompetent and dishonest, and they are totally focused on their own careers and self-interests.

If you can take those people out of the system, that sends a huge signal, and that's what's not happening in places like Transport Canada, where you have incompetent managers being promoted and disasters happening and no consequences for them. It's the same with Phoenix. There are no consequences for the people who created and designed this disaster, and there are no consequences in terms of understanding today what actually happened.

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

A few times today, mention has been made to removing the clause on good faith or good intentions.

I'd like to do a test with you, Mr. Hutton or Mr. Bron. Can you tell why I support Bill C‑290 and whistle-blowers? What are my intentions? Am I acting in good faith or am I looking for glory?

[David Hutton]

You're asking about good faith. This discussion comes up every single time that we introduce new people to these laws. There's fear propagated that you're going to be overrun with people with these frivolous accusations. It conjures up in my mind a vision of all these people jostling and fighting each other to get to the front of the line for their turn at the guillotine. This is what it's like. You don't rush towards career disaster. Even with the strongest laws that exist in other countries, whistle-blowers only get a remedy about a third of the time, so two-thirds of the time, they're going to lose their careers anyway. I don't think there's a great rush for people to step forward in that way.

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

Currently, as a member of Parliament, am I acting in good faith by supporting the Bill C‑290 or am I seeking glory, perhaps even revenge? Are you able to determine that?

[David Hutton]

I can't determine the motives of MPs, no. I look at their actions, and I look at the facts. That's what we should all do.

[Dr. Ian Bron]

If I could intervene....

I always find this question to be a bit of a dog whistle. It suggests that whistle-blowers are a problem, that they need to be managed, and that's not the case. There are very few people, as David said, who are going to put their heads into the mouth of a lion.

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

You're reassuring me.

I'll also reassure you that I support Bill C‑290, not because I'm a troublemaker, but because it's the right thing to do for our citizens and our workers. However, you're demonstrating that it's impossible to know what a person's true intentions are in a disclosure or even in supporting a bill.

Thank you, gentlemen.

[The Chair, Conservative, Kelly McCauley]

Thank you, madam. I appreciate it.

Mr. Johns, go ahead for six minutes, please.

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

Thank you both for being here and for your important work and testimony.

Can you speak to how to evaluate the effectiveness of a whistle-blowing system and also the timeliness in terms of the system's response to complaints?

[Dr. Ian Bron]

You have to start by understanding what the objectives of the law are and the steps you're going to have to go through to get there. Once you have an idea of how the law is supposed to work, then you need to develop some sort of performance framework. This pertains to what it is important that the law accomplish, how it helps people and whether it is going to be timely. Then you start looking at things like performance indicators and collecting the data that suggests this.

This sounds very theoretical, but what you need to know is how much time it is going to take to investigate each of these cases. Is it a reasonable amount of time? Is the investigation being conducted satisfactorily? Are the whistle-blowers who go through the system happy with the way they are treated and the resolution they get at the end?

It's the same for the people who are accused of the wrongdoing. You would like to know what the baseline of the wrongdoing that people observed when the program started was and how it has changed over time. Right now, none of these questions are being asked. Everybody in government can say, we have a law and it works fine, and there's no way to contradict them really.

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

There are changes to the bill that would help circumvent that. I'd like to hear about the five-year review and how that plays into this and that same question. Also, I'd like to know about the important role of the Integrity Commissioner and why that appointment is so critical.

[David Hutton]

I'd like to speak to that one.

Something we've not really talked about is the role of the Integrity Commissioner. That's actually crucial in this system because this act is appalling bad as it is. It does actually give the Integrity Commissioner a fair bit of power. In fact it has all the power of the Inquiries Act. The reason we have almost no results from this act is that the Integrity Commissioner has a whole host of excuses that they can give to do nothing, and they have consistently done that. I'm not saying that these are bad people, although I question what Madam Ouimet was thinking about in her tenure.

The problem is that, when you appoint people who are socialized and brought up in the bureaucracy and who expect to go back to it in some sense, then you're putting them into an incredible conflict of interest. If this starts creating user bias for the minister, they're going totally against the whole ethos and set of values of the public service, of the norm.

We have an Integrity Commissioner who is basically viewed as part of the bureaucracy and who behaves like a bureaucrat—

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

I think the results speak for themselves in terms of convictions.

We've heard some concerns about the bill—you've heard them here—and the expansion of protections to employees, including contractors, specifically jurisdictional issues around subcontractors, who are provincially regulated.

Mr. Bron, you talked about some of the work you've done and your experience working with provinces as well as with other jurisdictions around the world. Can you help address some of those concerns and the importance of covering them or not covering them?

[Dr. Ian Bron]

There are already a number of jurisdictions in Canada that offer protection to contractors who come forward with concerns consistent with what's in Bill C-290.

The best practice standard is that you protect any person, any worker, who comes forward with a concern. We've heard some concerns about jurisdictional issues, but to me this is a bit of a red herring. What we're trying to do is regulate the behaviour of federal public servants. They're the ones making the reprisals. They're the ones who are probably central to any wrongdoing that's been disclosed.

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

Another concern around whistle-blowers is having the freedom to choose to which supervisor to report the wrongdoing. Can you speak about that?

[Dr. Ian Bron]

One thing that can happen in a whistle-blowing case that goes sideways is that you will get an energetic investigator or recipient of a disclosure who insists on bringing the issue forward for the discloser. Management may not like that, so they'll start taking action against the investigator or the recipient of the disclosure to try to shut them up. This is why you have to consider the people around the whistle-blower as well, because multiple points of pressure can be applied when making a reprisal.