Government Operations Committee on May 1st, 2023

[The Chair, Conservative, Kelly McCauley]

I call this meeting to order.

Welcome to meeting number 64 of the House of Commons Standing Committee on Government Operations and Estimates. Pursuant to the order of reference adopted by the House of Commons on Wednesday, February 15, 2023, the committee is meeting on the study of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

Colleagues, we'll be going to about 4:30 p.m. Then we will go in camera to finish off the Governor General study.

We have one witness online and several in person. We have some opening statements. I will just confirm that for our witness online, we have done the proper sound check for our interpreters.

Mr. Bruyea, we'll start with you, after which we'll go to Mr. Devine and then Ms. Brill-Edwards.

Mr. Bruyea, go ahead, please.

[Sean Bruyea, Retired Captain, As an Individual]

Thank you, Chair.

I really want to sincerely thank all of you for inviting me here today. After 17 years of not a single substantive change to the Public Servants Disclosure Protection Act, a highly discriminatory act designed to fail, Bill C-290 is a long-overdue, vital and desperately welcome first-step initiative. I would not remove anything from this bill. However, like those who have come before and will come after me, I recommend some essential additions. You will find them in the four-page brief I have submitted to the committee.

First, please allow my story to underscore and add to your fine work.

As an air force intelligence officer, I served in the first Persian Gulf War. I would return early, broken physically and mentally, lost in a military culture that heavily stigmatizes any injury as a moral weakness. I hid much of my suffering, and therefore received little help. Veterans Affairs Canada, after a litany of bureaucratic deterrents, would recognize my disabilities and provide treatment and care.

As I regained my strength, I could not ignore that this system was abandoning or destroying so many of those it should be helping. I would be the first to speak out against the 2005 money-saving initiative to replace lifelong veterans disability pensions with one-time lump sums.

My calls for due process caught the eye and the ire of senior bureaucrats. The Government of Canada, which I lost much of my well-being and health protecting, sought revenge. My benefits and treatment were threatened or taken away. Allies who sat in Parliament refused to speak with me. Even the Prime Minister's Office told me that I should seek treatment, as if these reprisals were merely a manifestation of combat-related post-traumatic stress disorder.

I fought blindly to defend my family. My wife, an immigrant, was not yet a Canadian citizen. Senior bureaucrats with no medical training planned an ambush, calling me in for a “friendly chat” wherein they would issue an ultimatum that I be placed into the Veterans Affairs clinic for psychiatric care. Should I refuse—senior bureaucrats informed the minister of the outcome of the medical assessment before it had occurred—VAC would refuse to support my mental health providers, knowing full well that removal would likely result in my taking my life.

It took me five years to prove this. By 2010, over 14,000 pages were generated on every aspect of my personal life available to Veterans Affairs Canada, then distorted and placed into briefing notes provided to over 250 senior bureaucrats, my member of Parliament, the parliamentary secretary of the veterans affairs committee and two ministers, and briefings to the Prime Minister's Office. Meanwhile, another lengthy battle with VAC had them finally admit to having over 2.1 million pages resulting from a request I made about the department monitoring my newspaper columns and media appearances.

The evidence is overwhelming. Senior bureaucrats took the gloves off and pursued a two-part plan to remove my benefits and treatment while simultaneously discrediting me and my advocacy work. I would receive one of only two official federal government apologies at the time given to an individual not related to wrongful conviction. The other recipient of the apology was Maher Arar.

I put my life back together yet again and completed a master's in public ethics. Shortly after, in 2017, the government would table other deceptively crafted legislation that claimed to be reinstating lifelong pensions. I spoke out. Minister Seamus O'Regan accused me in a newspaper column of stating “mistruths”. The day after the article's publication, Veterans Affairs, without warning or consultation, terminated care for my son, who was then six years old—except Veterans Affairs had learned much since the 2010 privacy breaches and apology. Officials never put on record the reasons for cancelling the care, or they merely refused to release this information.

Four years of working with the privacy and information commissioners have been disheartening. Meanwhile, my health has spiralled again. My PTSD and depression have the unwelcome bedfellow now of severe anxiety disorder, as my mind and body broke once more, with panic attacks lasting not hours but months. Telephone calls from the case manager who signed the letter ceasing my son's care sent me to the ER on multiple occasions with heart arrhythmia. There were ambulances to our house as my son looked on, and monthly ER visits and hospitalization for household accidents as my mind and body disconnected.

After 30 years of suffering constant prostatitis caused by the Persian Gulf War, I developed stage 3 cancer. I sit here today recovering from that surgery.

A system with dozens of the most senior public service officials attempted to humiliate, disempower and discredit me, and then attacked my son's care when I was already dealing with life-threatening chronic illnesses from my military service, yet I was the one accused of being unreasonable, unstable and untruthful.

It is a wonder that anyone who serves in any capacity for our federal government would risk their job, their health, their reputation and their family to speak out. Still, they selflessly do. I, like them, believe that the corruption and mismanagement that appear in the country we love so dearly.... Such unscrupulous or dangerous behaviour must be called out lest others, or our nation, be harmed.

I strongly support expanding the act to former public servants and contractors. Serving military members and CSE have their deeply flawed internal complaint mechanisms. That leaves military veterans as the only federally employed or formerly employed demographic without protection, yet veterans are deeply vulnerable to the whims of a vengeful bureaucracy.

Over 100,000 veterans and almost 40,000 family members are partially or wholly dependant on Veterans Affairs for their financial security. There are no big box stores for veterans' benefits. There's only Veterans Affairs. This places veterans and their families in a particularly vulnerable situation, especially considering that almost 40,000 veterans are suffering a mental health injury.

Veterans are also uniquely positioned to not just see but experience any potential wrongdoing, not only in the $200 million in contracts awarded annually by Veterans Affairs Canada, but also in the new $0.5-billion contract for rehabilitation. We must, as a nation, take good governance and accountability as seriously as the rest of the developed world.

We must see whistle-blowing not merely as an inherent right to be protected, as we protect freedom of expression and our Charter of Rights and Freedoms. We must see whistle-blowing as the voice of reason, independence and accountability in a system where senior civil servants hold all the cards in consistently avoiding accountability.

Ultimately, we must protect those, especially—

[The Chair, Conservative, Kelly McCauley]

I need to interrupt you, Mr. Bruyea.

[Sean Bruyea]

You bet. This is the final line, Mr. Chair. Thank you.

Ultimately, we must protect those, especially the vulnerable, who step forward to protect and defend the best interests of Canada and Canadians.

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thank you, sir.

Mr. Devine, welcome to Canada. Welcome to OGGO. It's wonderful to have you with us. You are truly a legend in the world of whistle-blowing protection. We appreciate your participation.

You have five minutes for an opening statement.

[Tom Devine, Legal Director, Government Accountability Project]

Thank you for inviting me, and for your schedule flexibility.

The Government Accountability Project, where I work, is a non-profit, non-partisan support organization for whistle-blowers, those who use free speech rights to challenge abuses of power that betray the public trust.

Since I came in 1979, I've worked with over 8,000 whistle-blowers and have been on the front lines for 38 different whistle-blower laws. We're in the middle of a global legal revolution.

When I first came, the United States was the only country in the world where the whistle-blower law had passed—in the previous year, 1978—and now there are 49 nations with national whistle-blower laws and 123 with partial sectoral whistle-blower laws. The reason is that they make a difference. My written testimony has examples of that.

Not all rights are alike, though. The whistle-blower laws are free speech shields against retaliation, because fighting abuses of power means war. If you go into battle with a metal shield, it's dangerous, but you have a fighting chance of living. If you go in with a cardboard shield, no matter how beautifully it's decorated or how heavily it's advertised, you're going to die, and too many whistle-blower laws are the latter.

GAP and the International Bar Association did a global study based on 20 consensus global best practices for what it takes for an effective right. These best practices, I want to emphasize, have been adopted in all four continents. The principles get customized for the legal structures of any given country, but the principles themselves are universal.

In using that study, the results for Canada were that it was complying with one out of 20 consensus best practices. That tied Canada for the weakest whistle-blower law in the world with Lebanon. To me, it's not a cardboard shield here, it's a paper-tissue shield, a law that rubber-stamps retaliation and that any whistle-blower support organization has a duty to warn whistle-blowers against relying on.

Bill C-290 would go a long way towards changing that. I want to give credit where's it's due.

It takes away the motives test for protection, which has put the whistle-blower's reasons on trial instead of the misconduct that's being exposed.

It provides protection from abuse of authority. That's the cornerstone of whistle-blower rights globally, and its absence from Canada's law has been conspicuous. It's well defined as arbitrary and capricious actions that result in favouritism or discrimination.

Bill C-290 protects the whole team that's responsible for an effective whistle-blowing disclosure, rather than just the final messenger. It takes solidarity to survive as a whistle-blower, and the fatal word is isolation. Bill C-290 enables solidarity.

It provides reliable identity protection because the whistle-blower has to approve exposing his or her identity.

It removes the Achilles heel of current law, which is the Public Sector Integrity Commissioner's veto power over access to the tribunal and judicial review.

It improves the dysfunctional 60-day statute of limitation to a functional one year to act on your rights.

With respect to disciplinary accountability, it's setting a new standard for best practices, because it allows the whistle-blower to counterattack against the person who's bullying him or her when they defend themselves.

While these improvements are badly needed and welcome, the law will still not provide credible protection against retaliation; they're an outstanding beachhead, necessary but not sufficient.

My written testimony has about a dozen recommendations for you to consider. I think the highest-priority ones are to make sure the rights can't be cancelled through non-disclosure agreements that are prerequisites for employment, or through agency regulations that can cancel public freedom of expression rights in the law, as in the current statute.

Second is burdens of proof, meaning the rules of the game for how much evidence it takes to win. The European Union and the U.S. both have analogous burdens of proof that should be considered.

Third is temporary relief, so that whistle-blowers can survive during multi-year litigation, and there's an incentive for agencies to settle instead of dragging things out.

Fourth, have no-risk counselling and training, so people understand their rights and can change the culture.

Finally, restore remedies that have been cancelled due to the PSDPA's existence. Some of those remedies were superior.

Mr. Chairman, this is an outstanding beachhead to build on, but it's not sufficient. Bill C-290 would change Canada's rights from a tissue-paper shield to a plastic shield. I urge you to make further amendments so that this will be a metal shield.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Devine.

Dr. Brill-Edwards, go ahead please, and then we'll go to Ms. Myers.

[Dr. Michèle Brill-Edwards, As an Individual]

Thank you, Mr. Chair.

I'm Dr. Michèle Brill-Edwards, a pediatrician and clinical pharmacologist. I recently retired from clinical practice and from teaching in pediatric emergency medicine at CHEO and the faculty of medicine at the University of Ottawa.

[The Chair, Conservative, Kelly McCauley]

I'm sorry, would you be able to speak a bit closer to your microphone?

[Dr. Michèle Brill-Edwards]

Yes.

As a former senior public servant turned truth-teller on two occasions, one internal and one external, I'm here to offer my perspective on improving whistle-blower protections.

I joined Health Canada's drug regulation unit in 1980 and led the unit from 1988 to 1992 as Canada's senior physician responsible for prescription drug regulation. That is the authorization allowing clinical trials and market approvals for prescription medicines in Canada.

I enjoyed the worthwhile challenges of that work in that senior role, but I gradually began to realize that Health Canada's senior ranks at times put Canadian lives at risk needlessly to favour perceived political and industry advantage, contrary to the Food and Drugs Act, which is, of course, the citizen's bill of safety rights.

During one such event in 1991, I helped win a Federal Court case to remove a senior Health Canada officer who was overruling serious safety decisions on life-threatening drugs. Within six months, the same director was reinstated by the department by a new process, and my senior position was deleted from the org chart.

I prepared, then, to leave Health Canada, having won an international competition for a post at the World Health Organization. Such posts require our government's concurrence. Health Canada's deputy minister was happy to agree to my departure, but only in return for my silence in any future legal proceedings. I declined that gag order on safety, and forfeited a career-saving dream job.

Eventually, in 1996, when Health Canada failed to remove a dangerous cardiac drug from the market, I resigned and blew the whistle in a major CBC documentary revealing Health Canada's reliance on biased expert opinion from doctors with strong ties to the drug industry. That documentary prompted landmark work, showing unequivocally that ties to industry wrongly bias doctors' interpretation of pharmaceutical research. As a result, guidelines to manage medical conflict of interest were upgraded internationally, including at the FDA, but not at Health Canada.

In the aftermath of my resignation, I was blacklisted and didn't work for nearly four years. Instead, I used my voice, along with allies, to serve the public interest to ensure that citizens understood the extreme danger of a health department that, under the policy guise of deregulation, had turned off the alarm systems essential for the preservation of lives.

By 1998, those efforts bore fruit. Alarm bells were ringing across the country, with the exposure of multiple Health Canada mishaps, I suppose, but scandals, truly. It came at great personal cost to our family, with the death of my mother in 1999 due to all the turmoil and stress that our family was subjected to.

I'd like to spend a moment speaking briefly to the need for legislative change to the current legal practice.

Certainly, both cultural and legislative change are required parts of the solution we seek, but to me, legislative change is the essential key. To achieve respect for and protection of truth-tellers requires, first and foremost, legislative change in the form of sanctions on retaliation against whistle-blowers, as Tom has said just now.

Why do I say this? In my experience, we are dealing in Canada's public service with a pervasive long-standing adherence to the loyalty principle. By that I mean the deeply ingrained standard operating procedures of cover-up and deception, which automatically deploy, reflexively, to protect the image of the minister and the government at all costs. Do whatever it takes to cover up—up to and including lying, sadly—even if that puts Canadian lives at risk. Seek and destroy the truth-teller who jeopardizes the facade—

[The Chair, Conservative, Kelly McCauley]

I'm sorry, Dr. Brill-Edwards. I have to ask you to wrap up, please.

[Dr. Michèle Brill-Edwards]

Yes, I am just about to do that.

The deeply ingrained principle operates even at the very highest levels, so what must we do? Only legislated sanctions applied overtly on high officials will do the two essential things, and here I stop: First, create a safe space for truth-tellers, free of retaliation, and second, signal to all public servants an authentic new era of transparency, not just more blah, blah, blah.

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thanks very much.

We'll go over to you for five minutes, please, Ms. Myers.

[Anna Myers, Executive Director, Whistleblowing International Network]

Thank you. I'm very pleased to be here today. As a fellow Canadian who hasn't worked in the field of whistle-blowing directly in Canada, except through some work with the Centre for Free Expression at Toronto Metropolitan University, I'm very pleased you're reviewing this law.

I have worked in the field for 23 years. I was called to the Ontario bar, but switched allegiances to the Law Society of England and Wales. I was the deputy director of Public Concern at Work—which is now called Protect—so I answered the phone to whistle-blowers across the U.K. The whistle-blowing law in the U.K. has been in place since 1993. It covers public sector workers, private sector workers and charitable workers.

What I was astonished by, even though Canada put a law in place in the 2000s—obviously in a period in which others were taking those steps—was that the law itself didn't follow some of the best practices that make sense. I think you have already heard about some of this. I will go through it very briefly.

I want to point out that this isn't new. The ancient Greeks had a term for this: parrhēsia, or “fearless speech”. Under the Hellenic monarchs, for example, the king's adviser was required to use it to help the king make decisions, but also as a means of tempering his power.

I would note that what Canada seems to have done is implement a law that quite adequately deals with helping the government make decisions. It improves some of the flow of information through to the government. However, it has not implemented a law that effectively tempers power and those who are negligent or abusing their power.

The act of whistle-blowing, of course, has lost none of its importance during the 23 years I have worked in the field, from the Chinese doctor who first warned us of COVID-19—and died of it—to hundreds of medical and care staff across the globe who called out supply shortages and mismanagement. We knew more about how to protect ourselves and what the pandemic meant because of these truth-tellers, but, unfortunately, two attempts were made to silence these voices. Dr. Li was initially ordered by the police to stop making “false” comments, and doctors, nurses and government employees across the world lost their jobs for speaking out.

We know whistle-blowers are typically those in the workplace, whether in the public, private or charitable sectors. They are the first to see something go wrong, so they often have a preventive role. As a Canadian, I think this makes perfect sense. People speak up about wrongdoing. If it's not dealt with as something that could harm others, and they lose their job or suffer retaliation, the law ought to step in and protect them.

Whistle-blowers are also now seen as essential for credible law enforcement against corruption. Of course, they can threaten organizational leaders who are, perhaps, themselves abusing power or don't like to be questioned. They often respond with an almost instinctive drive to destroy the threat. We need to start with the view that “whistle-blower”, as a definition, does not equal “martyr”. We need laws that, as Tom Devine pointed out, give whistle-blowers a fighting chance to survive. The laws need teeth.

One thing to think about when we talk about this revolution in whistle-blowing law.... We have had a number of laws through time. I thought I would mention a few that have put in practice, from the beginning, some of the elements we're talking about.

For instance, one of your witnesses today talked about working for the military or potentially working with official secrets information. Ireland has had a law since 2014. Within that law, it has a special system for protecting those working with official secrets information.

In Serbia, the Law on the Protection of Whistleblowers since 2014 also includes a duty on judges to be certified—to be trained—before they are able to hear any whistle-blowing claims. The only other laws in which they have to be certified are child protection laws. The correlation between judicial training and the strongest implementation of interim injunctive relief yet seen in any jurisdiction is quite clear. This is starting to be rolled out more and discussed in Europe.

What Tom Devine also mentioned is the EU directive. I have also put in my notes to you the EU whistleblowing monitor. You can see we have been tracking the laws across the EU. With the EU directive—which is obviously making 27 European countries put in laws now—we're witnessing what I think is this important shift, one the Canadian law needs to take aboard: This is as much about accountability as it is about protecting the individual. In that law, there are now duties of care on employers, organizations and regulating authorities in terms of how they run their systems and arrangements for protecting whistle-blowers.

I think there are five essential elements, and Mr. Devine has given you quite a lot of detail around what needs to be put in place, but I wanted to emphasize five. It has to be a broad and—

[The Chair, Conservative, Kelly McCauley]

I'm sorry, Ms. Myers; we're past five minutes already. Can I ask you to be very, very brief?

[Anna Myers]

Yes. It has to be a broad and workable definition of information. There has to be a range of protected channels to ensure that there are alternatives where any are blocked. The reverse burden of proof absolutely has to happen, because that is the only element that really ensures that you are levelling the playing field. Another element is access to independent due process, and the Canadian law is the only one I'm aware of in the world that has ever had this gatekeeping rule. The last element is protection against a range of retaliation measures, not just the ones we see in a dismissal.

I would just like to point out that the EU directive is shifting that, and 27 member states are going to have to follow this and are implementing laws now. Canada has an opportunity now to make a real difference, not only bringing itself back up to speed with what's happening internationally, but perhaps taking it forward.

Thank you very much.

[The Chair, Conservative, Kelly McCauley]

Thank you, Ms. Myers.

Colleagues, if you'll bear with me, it's a bit unorthodox, but we have Ms. Gaultieri back with us. She has a short statement of two minutes and 20 seconds, I understand. I think it's important enough that we allow a bit of leeway.

Go ahead, please, for two minutes and 20 seconds.

[Joanna Gualtieri, Retired Lawyer, Department of Foreign Affairs, Trade and Development, As an Individual]

Thank you, Mr. Chair. I've already condensed it, so hopefully we'll be under two minutes.

With Tom's absence last week, I return to provide testimony that Tom and I had collaborated on.

At FAIR, the whistle-blowing charity I founded and where Mr. Hutton came to volunteer, I wrote standards for a good law, adopting Tom's work. Mr. Hutton shared some with you, but never did I foresee the vengeance that would be marshalled against Canadian whistle-blowers, rendering these standards problematic.

In Canada, free speech and due process, fundamental to any whistle-blower, are handicapped. Former Chief Justice Beverley McLachlin put it this way: “[W]e in Canada are more tolerant of state limitation on free expression than are Americans. Similar points can be made about other constitutional rights.” She continued by saying, “[T]he Canadian approach is more nuanced than that of the United States in relation to due process” and, “We are comfortable with ambiguity.”

The nail in the coffin was eloquently warned about by our current Chief Justice Wagner, quoting Balzac: “Laws are spider webs through which the big flies pass and the little ones get caught.” Foundational to culture, these authoritative statements are ominous, especially since the whistle-blower is always the small fly.

You have repeatedly asked what this committee should do. First, take ownership of the crisis. For too long, ordinary Canadians have been doing Parliament's job.

Second, commit to signing an unambiguous public statement affirming full free speech rights for whistle-blowers, and incorporate it in Bill C-290.

Third, identify and bulldoze the due process nuances currently weaponized by our government, courts and tribunals to suppress whistle-blowers' human rights.

Committee has referenced the role of good faith. Please employ your own. Pass C-290, not as an end but as the beginning of a wholesome culture of truth-telling.

Thank you very much.

[The Chair, Conservative, Kelly McCauley]

Thanks very much.

We'll start with Ms. Kusie for six minutes, please.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you, Chair, and thank you very much to our witnesses for being here today and for sharing your stories.

Mr. Bruyea, in your first sentence, you refer to the legislation here in Canada as discriminatory. Can you expand upon that, please?

[Sean Bruyea]

I will answer that question with an anecdote that I told my son this weekend. He asked me what lie I was speaking about this weekend, and I said, “Imagine that you went to a group of people, and you said to them: 'We're worried about some of you committing a crime, so we would like you to write the law. We would like you to assign the chief of police. We would like you to populate the police that will enforce that law. We will give you control over every aspect of evidence. We will give you unlimited legal resources, and we will give you unlimited financial resources to defend yourself, and, should anyone accuse you of committing a crime, then you have the right to persecute that person.'”

My son said to me, “That doesn't sound like a very smart law, and it sounds like the criminals would like it.” I think that's what we have in front of us, a law that basically does not help the whistle-blower, even though in name it's supposed to. We would never build, for instance, a public building for all Canadians that didn't have wheelchair-accessible ramps or wheelchair-accessible bathrooms—specifically supposed to be designed to help people who are truly vulnerable, disabled, fighting the government—and put in a whole bunch of ladders and a whole bunch of walls that they have to climb over when they're not capable of doing so. Bill C-290 starts to take away some of those obstacles.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you for that response.

Is your son here today?

[Sean Bruyea]

He is. He's over there.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

That's very nice.

[Sean Bruyea]

Thank you.