Government Operations Committee on April 26th, 2023

[Joanna Gualtieri]

I think it's a complete failure in leadership.

I just came back from Ivey business school, where I teach every year. People are deeply involved in this issue. They see it as an assault on them.

In the States, Vioxx, which killed 50,000 to 60,000 people, was taken off the market because of Dr. Graham's disclosure. In Canada, we had the blood scandal in the 1980s. Some 60,000 people—that was the number, but perhaps there were many more—died of hepatitis C and AIDS, because the government failed to screen the blood when it could have. People went to jail in France and other countries. Here, virtually nothing happened, even though we had a public inquiry.

We really need to start engaging the public. Frankly, the governments until now have not been pushed enough. We need a media that's more engaged. We need parliamentarians who are engaged. We need a bureaucracy that's engaged, and we need to light a fire in the public to demand it.

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

Thank you.

I really appreciate my colleague for tabling this PMB in place of the government not doing its work.

Ms. Dion, what will it mean for Canada if we pass this bill?

[Julie Dion]

I think that would allow for much more transparency and acceptance. In fact, no one is immune: mistakes and abuses happen everywhere. To accept that there are some is also to grow and also to get back on your feet, to have a stronger system, to have clearer rules and to fully accept the junior employees who are doing the work. Right now, these people aren't being listened to. There is no transparency.

In my opinion, supporting and properly supervising these people will ensure that the government is more transparent with the public and in its entirety. It must not bury its head in the sand and must look at what's happening in its own backyard.

Who was the last one for the whistle-blower...? Was it Zimbabwe? Who was at the end of the.... ?

[Joanna Gualtieri]

It's Zimbabwe.

[Julie Dion]

It was Zimbabwe or something like that.

I'm neither proud nor happy to know that our country, Canada, is so far behind in this area. I find that hard to believe. I mean, come on. It's the workers who are supposed to make the change. It's terrible, what we're hearing. What Ms. Gualtieri said is terrible. That I lost my job and that Luc Sabourin was traumatized like that is terrible. Please help us. We're here today for you to help us.

[The Chair, Conservative, Kelly McCauley]

That's a bit more than our time, but thanks very much. I appreciate it.

Mrs. Block, you have five minutes, please.

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

Thank you very much Mr. Chair.

I, too, want to thank you for being here today. It is very sobering. I recognize that it is probably very difficult to revisit these issues that you experienced while you were employed with the public service and obviously continue to carry with you, as has been pointed out to us by various witnesses.

I also note that witnesses who have appeared before us in the last couple of weeks are here today, so I recognize that there is a community. I'm sure that has developed as a result of individuals who have had the same experience.

In her submission, Ms. Forward made this observation, and I will quote it:

The literature has confirmed that legislation alone will not protect whistleblowers, especially if it is introduced into an unwelcoming or resistant environment as it will not be upheld. Culture is equally or even more important. Culture is greatly impacted by leadership and the values and norms in the overlapping and administrative cultures of government.

She goes on to say:

We cannot keep on repeating the mistakes of the past that led to the poor performance of this current disclosure regime without causing further serious harm.

When we think about that, we recognize that this private member's bill, which is limited, perhaps, in how far it can go to address the issues, is perhaps a first step. As you pointed out, Ms. Gualtieri, you believe that it is the beginning of a debate that needs to be had in this country.

I recognize that there is another saying that culture eats strategy for breakfast, so we can go a long way in putting mechanisms in place to address the issues that you've raised, but I do believe that we have to get at the culture of the public service, as Ms. Forward has pointed out.

Do either of you have any suggestions for how we might go about doing that as we, at the same time, also address the issues through legislation? Do you know of any examples where a culture has successfully been changed in order to ensure that you function in a safer place?

[Julie Dion]

You go.

[Joanna Gualtieri]

Again, thank you very much.

Regarding the culture, the most obvious example is the U.S.A. They have been the leaders in this. There is a lot of wrongdoing that goes on in the U.S., but there's a lot of right that goes on there as well. One of them is that there is a strong counter-power. Philanthropists in the States don't just give to the arts, ballet and music; they give to these causes. I worked in Washington long enough to see the billionaires who came forward and were giving to GAP and to other great causes.

What changed the culture in the States? In 1986 the Challenger exploded and in mid-air seven people were incinerated. What we learned after that was that engineers had warned against that launch, but it was political to launch it. Reagan wanted to launch it. What did the people do? They flooded congressmen's and senators' inboxes with outrage. That really was the transformative period when it was no longer okay to ignore whistle-blowers. Things weren't perfect, because they would pass laws—and Tom drafted most of them—and then they would immediately step in and create loopholes.

However, there has been a real change. I saw it at GAP when I was there. There were a number of things, like drugs that were killing people, the environment and nuclear plants that were poisoning people and got shuttered. Snowden, whether you agreed with him or not, kicked off a debate about whether the government could, without warrant and without right, go in and start snooping on you.

Today, it is absolutely very risky for either government or private industry to ignore whistle-blowers. It's also very lucrative now, because there are lots of liability issues. With the False Claims Act in the States, lots of people are triggering it, and there are significant payouts being made. Let's be honest. Lawyers are doing lots of cases now, because they're participating via contingency fees in the payout.

The culture changed, because the public demanded it.

[The Chair, Conservative, Kelly McCauley]

Thank you very much.

Mr. Bains, you have five minutes, please.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for joining us and, again, showing your courage to revisit these stories and for your continued advocacy.

Perhaps I can ask Madam Gualtieri. Several amendments to the act in this bill removed restrictions meant to prevent overlap with other pieces of legislation or bodies, such as subsection 19.1(4), which prevents individuals from “commencing any procedure under any other Act...or collective agreement” if they file a reprisal complaint.

Would removing this restriction introduce significant overlap among recourse mechanisms?

[Joanna Gualtieri]

No. I'll give the straight answer on that, and Tom Devine is going to speak to you about this. Any right that is given under a whistle-blowing act should be additive. In other words, it should just be one option for the whistle-blower. Why would you support an act that restricts rights that are inherent? Our tort rights should be preserved. Our rights under the charter need to preserved.

I sued the government. Do you know what the government did after I was successful at the court of appeal in a unanimous decision? They didn't appeal it to the Supreme Court of Canada. Instead, very quietly, in 2003, buried in a huge omnibus bill, they put in a section that said that a public servant has no right to sue anymore. That was section 236 of the Public Service Modernization Act.

What I am telling you is that, in any enlightened democracy, the rights should be additive, but they should not be exclusive. The man who's had the longest history in drafting laws and in acting for whistle-blowers is Tom Devine, and he will speak clearly to this.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I'll look forward to asking Mr. Devine....

In addition to that, what problems could that cause?

[Joanna Gualtieri]

For decades in the States, where most of the litigation has gone on, it has not caused problems. You can't.... How is one supposed to find the time to marshal their case and then start multiple proceedings? That's not the way the real world works. They're going to pursue the avenue that is most effective and most efficient and will give them a chance to prevail.

It just doesn't happen. It wouldn't be fiscally feasible for a whistle-blower. It is a comment that comes up, but it's just not supported by real-world data.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I'll ask Madam Dion a question.

The bill also wishes to add contractors to the definition of “public servant” under the act. Does this not create a constitutional division of power issue, as most contractors are covered by provincial labour legislation? Could you comment on that?

[Julie Dion]

I wouldn't see how it would create division.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Madam Gualtieri, maybe you could—

[Joanna Gualtieri]

Speak to the issue of jurisdiction...?

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Yes, because it adds contractors to the definition of “public servant” under the act. There could be a constitutional division of power because contractors are mostly covered by provincial labour.

[Joanna Gualtieri]

Obviously, we have to deal with jurisdictional powers—it's constitutional. I think what needs to be understood is that it starts at the top. Once the Prime Minister and his cabinet and then his party and Parliament signal that there's going to be strong whistle-blowing protection for federally covered employees, that starts a cascade effect.

I've collaborated with provinces. They looked to what was happening at the federal level because, as pioneers, there was a sense of “how do we do this?” A very poor precedent got set at the federal level, and the provinces followed.

When our government turns this around and does the right thing federally, I am quite certain the provinces will follow.

[The Chair, Conservative, Kelly McCauley]

I'm afraid that's our time, Mr. Bains. Thanks very much.

Ms. Vignola, you have two and a half minutes.

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

Thank you very much, Mr. Chair.

Ms. Gualtieri, you wanted to work in an environment that was efficient, ethical and accountable to taxpayers. I understood from your presentation that you were harassed. You went to great lengths to expose abuses in the department you worked for. If I understood correctly, you went as far as the minister, who at the time was the all-powerful Lloyd Axworthy.

What was the response, and what were the consequences?

[Joanna Gualtieri]

I think that's a very critical question. There's a lot of sycophantic behaviour in government, as there is in institutions in general. I believe that all people should be treated equally, recognizing of course that there has to be deference and respect to your bosses.

The question you ask is a far larger question than we can address today, and it goes to the whole issue of ministerial accountability, which has been eroded now for decades in Canada. There's a lot written about this, and I encourage you to talk about it when you're looking at the whistle-blowing legislation.

With Axworthy, it was galling. He was going around the world as a champion of human and individual rights, and when I reached out to him, I felt quite confident that he would listen to the issue. Instead, as I said, a letter came back very quickly threatening libel, so I sued him. He became part of the process. That was 25 years ago. I would hope that today a minister would not so brazenly dismiss an employee who came forward with so much evidence.

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

In short, you were threatened by a minister or by the government.

[Joanna Gualtieri]

Yes. They were very clear that—