Evidence of meeting #63 for Government Operations and Estimates in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was whistle-blowers.
A video is available from Parliament.
Senior Fellow, Centre for Free Expression
It's important to give the whistle-blower quite a few choices about how they can proceed.
First of all, they might not be fully aware of all the rules. You don't want them to lose protection just because they didn't read the rules carefully enough. Secondly, they're taking a huge risk with their careers. They need to be able to go where they think they may have a chance. In some cases, they will absolutely know that there are certain avenues that they cannot pursue. They need to have alternate avenues. They should not be forced, for example, to report to the very people who may be in charge of the wrongdoing. That would be a bad idea.
Conservative
The Chair Conservative Kelly McCauley
Thank you very much.
Go ahead, Mr. Barrett, and then we'll have Mr. Fergus.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON
Thanks very much, Chair.
Gentlemen, thank you for joining us today.
With respect to the appointment of the Integrity Commissioner, I want to go back to your exchange with Mr. Johns. What solution would you propose for the appointment and selection of the Integrity Commissioner? From what pool should they be drawn? What requirements should the government have with respect to the appointment process?
We've seen in the past that, when commissioners have given news that's bad for the government, the government hasn't filled those roles. We've seen that with the victims ombudsman, an office vacant for over a year. We've seen that with the veterans ombudsman. The opportunity for a government that could be embarrassed by a process to just not fill the role and freeze up the process might incentivize bad behaviour by a future government.
What would you suggest as a remedy for the situation that I've described?
Senior Fellow, Centre for Free Expression
You're describing fairly accurately what the problem is. We have to tie the government's hands, to some extent. We're talking about the appointment of an officer of Parliament. That does involve both parties and both Houses, so in theory, at least, there is the opportunity to object to certain appointments. That hasn't happened, perhaps because those opposition parties haven't seen this as an important enough issue. There has been really no challenge.
What needs to be written into the law is that the person who fulfills that role does not come from within the bureaucracy and is an independent outsider. This was, in fact, the type of person who was appointed to the very first whistle-blowing agency, which was the PSIO. It preceded the PSIC and operated under just a policy and not legislation. The person responsible for that was Dr. Keyserlingk, who did a wonderful job, given his very limited power. He used his office to campaign for a better regime, one entrenched in law, successfully.
As he was departing, he had a conversation with PCO—this is all documented—saying that it was very important to appoint people from outside the bureaucracy for the reasons we've discussed. According to Dr. Keyserlingk, PCO agreed with that and said they would do just that. He asked a number of people to put themselves forward who he thought were good candidates. They were not even consulted. Their applications were not even recognized. He wrote about all this to this committee. You have that on file somewhere.
The answer is to go back to what Dr. Keyserlingk recommended. Appoint people who are actually capable, credibly, of carrying out what is virtually a law enforcement role within the government, where you're required to undertake energetic investigations of alleged wrongdoing that could be occurring at any level.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON
It's interesting that, when you look at the officers of Parliament—these roles that were created—the government, through Governor in Council appointments, has the ultimate say. Sometimes Parliament could be left with a choice to either accept the government's recommendation or leave the role vacant by not ratifying the government's selection.
I would just draw to your attention the current vacancy in the office of the Conflict of Interest and Ethics Commissioner. There are very stringent requirements for who can be appointed and for the credentials required to be appointed to that role, including being a former federal court judge. The Judges Act sets the salary for a judge. The new Ethics Commissioner will receive 40% less than a judge. Therefore, for the pool of qualified individuals they are looking to draw from it is now, “If you're interested in this position, you'll earn 40% less, but we assure you that we take this work very seriously.”
There are different ways for them to interfere, so I take your suggestion well and will refer to the documents that you referenced. I'm sorry that I don't have more time.
Thanks very much.
Conservative
The Chair Conservative Kelly McCauley
Thanks, Mr. Barrett.
Mr. Fergus, you have five minutes, please.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
Thank you very much.
I really do appreciate the testimony from these two witnesses. Let me just reassure them that of course we are looking at ways to make sure that we could.... There needs to be an update to the whistle-blower protection act. There have to be changes, which are being brought about. We have an opportunity right in front of us to bring forward some important changes that would be connected with Bill C-290.
With that understanding, I'd like to turn to you, gentlemen, to help us try to improve the act and to make sure that we will have something that can work within the confines, of course, of a private member's bill and the limitations that we have in that. We could see this as a first step toward a government bill that would come to improve the act. Nonetheless, let's take advantage of the opportunity that is in front of us here.
You mentioned, Mr. Hutton, the PSIC and its predecessor, the PSIO. I'm keen on this notion. In the private member's bill, there is an intention to create an intermediary body or to transform the role of the tribunal. It would serve as a sort of way station between the Public Sector Integrity Commissioner and of course a very expensive federal court system, which would be very expensive to the whistle-blower if they were to choose to go down that route, which should be their right.
Would creating this tribunal as a way station diminish the role of the PSIC as you see it? Would that then imply, for those being accused of wrongdoing, that there would be an obligation for government to extend some legal services to them so that they could defend themselves in case they were being wrongfully accused of wrongdoing?
Senior Fellow, Centre for Free Expression
You raised several good points there.
A feature of our current system is that it is completely sealed off from the real world. There is no access to the courts and no access, through access to information, to any of the information brought forward regarding wrongdoing, for example. It disappears forever, and the tribunal is deeply flawed.
We said from the start that there should be access to the courts—the regular courts—with the normal rules regarding judges and so on. That has been denied here. That certainly ought to be available. One thing I would point out is that the only way people can challenge decisions of the tribunal or decisions of the commission is through judicial review. Every single judicial review, I think without exception, has excoriated the decisions of the Integrity Commissioner, yet that doesn't amount to redress because a judicial review does not allow them to replace their own ruling. That is a huge problem in the act.
Even though it is expensive and difficult, access to the proper court has to be there as a kind of check and balance that the tribunal is doing its job, and so that it can be overruled if it's distorting the law and finding against whistle-blowers when it should not.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
Is that a recommendation that you would have for Bill C-290, then, to not direct people towards having a judicial review but to having access to the regular court system?
Senior Fellow, Centre for Free Expression
I'm not arguing against judicial review. I'm saying that there must be access to the courts.
I'd also make the point that it's absurd, insanely absurd, that a whistle-blower goes to the tribunal with no support. He might have some financial support from his union if he's lucky. On the other side, you generally have a team of lawyers, paid for by the government, representing all the folks accused of doing bad things. The optics of that are terrible, and that's the current reality.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
This is a very interesting point. You're calling, then, for a levelling of the playing field in terms of having access to legal representation.
Conservative
The Chair Conservative Kelly McCauley
Thanks very much.
We'll now have Ms. Vignola for two and a half minutes and then Mr. Johns for two and a half minutes. Then I need 20 seconds for some committee business.
Go ahead, please.
Bloc
Julie Vignola Bloc Beauport—Limoilou, QC
Thank you, Mr. Chair.
Mr. Hutton, I'd like to ask two quick questions, of the many I have left.
Based on your knowledge, do you think it's legal to prohibit a citizen from asserting their rights in court?
Bloc
Julie Vignola Bloc Beauport—Limoilou, QC
Thank you.
If a private sector employer harassed, threatened or intimidated employees, what would happen to that employer?
Senior Fellow, Centre for Free Expression
I think it depends a lot on the management of the organization. In a well-run organization, there's zero tolerance for that, because harassment is a signal of incompetence. It's a controlling style of management that signals to you....
This is not a soft issue. The issue is not that we shouldn't be nasty to people. The issue is that, when you see someone using a harassing style of management, you know that they're incompetent. You know that they cannot deliver the goods, because that's the style used by people in that situation.
Julie Vignola Bloc Beauport—Limoilou, QC
Earlier, you talked about reversing the burden of proof. Why is it so important to do this?
Senior Fellow, Centre for Free Expression
I'll tell you a quick story on this.
It's been known since the early 1980s that you need a reverse burden of proof. At the first attempt to do this in the U.S., of the first 2,000 whistle-blowers who went through this system, four prevailed, so the chances were one in 500. Those were not good chances. The next attempt at writing the law introduced this idea of a reverse burden of proof. That caused a big improvement. It's still not a slam dunk for the whistle-blower. Even with the best lawyers, to date only about 30% succeed.
Our law was written without reverse onus. More than 20 years later, the Senate tried to put in a reverse burden of proof. They introduced 16 amendments based on our testimony—all stuff that will look very familiar to you today, including reverse onus. It was rejected.
We have been in the dark ages ever since the bill was written. The bill reads like an insult to whistle-blowers. It reads like a message that says, “We are going to screw you over, and here are all the ways we're going to do it.”
