Government Operations Committee on May 1st, 2023

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

Thank you.

[The Chair, Conservative, Kelly McCauley]

Thanks very much.

Mr. Johns, it's good to see you. You have six minutes, please.

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

Thank you.

Thank you all for your testimony.

First, I want to thank Mr. Bruyea and Ms. Brill-Edwards for their service to Canada and for sharing their heartbreaking stories. It's painful to hear them. I'm very sorry to hear what you've been through. I want to highlight that and thank you for your courage.

All of you who are here today are testifying to pursue justice, not just for what your experience has been, but for those who are in the public service and for the future of our country. I thank you.

Mr. Bruyea, could you explain why you recommend that serving CAF members collecting VAC benefits should be covered under this act? Elaborate a bit on what you started in your testimony.

[Sean Bruyea]

Certainly. Thank you, Mr. Johns.

Serving CAF members are also entitled to collect Veterans Affairs benefits. The issue is that the internal review process that CAF has in place has a chief of review services. They report incidents of wrongdoing up the chain of command. It's a very hierarchical structure, more so than the public service.

The problem would be that if the CAF member wants to report something to deal with Veterans Affairs, there's no authority for CAF to deal with issues concerning Veterans Affairs. They would also not be treated very sincerely, given the stigma with which disability is viewed within the Canadian Forces.

I think it's important that serving members be able to separate their personal lives, where they suffer disabilities, from their professional lives, where they may witness wrongdoing within the operations of CAF.

I hope that answers the question.

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

It sure does. That's great.

Also, in your opening remarks, you stated that the PSDPA is a highly discriminatory act that is designed to fail. Can you explain a bit more why you say this?

[Sean Bruyea]

Yes. I provided an anecdote previously.

One of the things is the PSDPA doesn't seem to understand the whole nature of culture within an organization. I would put this to members of the various parties in this committee: How willing would you be to step outside the party to criticize something that is occurring within the party?

Loyalty within the public service, I would say, is even more so than that, in that public servants, for the most part, really take to heart what their job is, yet the PSDPA uses words such as “good faith” and the definitions of many other words that I call “weasel” words. These are words that are open to interpretation, and the interpretation is controlled by the government.

In a sense, it is a really disabling feature that so much of the interpretation of the legislation is not in the power of the courts. It's definitely not in the power of the whistle-blower. It is an adversarial system that does not view them in good faith. I think, in that sense, we have a cultural misunderstanding about how difficult it is to be a whistle-blower.

To consider removing “good faith” from the clause and replacing it with another burden of proof.... I would say that enough has been levelled against the whistle-blowers. I think we should just remove the term “good faith” and not try to replace it with anything else.

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

What other additions to the act would you like to see?

Also, did you have any other comments that you haven't had a chance to share with the committee?

[Sean Bruyea]

What I see with the act is that it's really important to see this as a stepping stone for going forward. It's not perfect, but you know what? Nothing passed in Parliament is ever perfect. We work on a system of evolutionary change. There's hardly ever a revolution in Canada in the way things happen, so you know what? It has to start somewhere.

When we're dealing with the culture within a closed system—and the public service is a very closed system; I would juxtapose it against the military's very closed system—that culture has been almost impossible to change with respect to discrimination and sexual harassment, but that has never stopped Parliament from stepping in and saying, “Hey, we're going to start with holding people accountable first and wait for cultural change later.” This is what Bill C-290 does, and I'd like to see that pursued.

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

That's excellent.

Ms. Brill-Edwards and Ms. Myers, you both talked about the importance of sanctioning retaliation on whistle-blowers.

I really appreciate hearing you talk about international examples, Ms. Myers. Do you want to suggest some amendments that you would like to see in Bill C-290 that would help strengthen this, as you've seen in other jurisdictions?

[Anna Myers]

Yes. I will send some examples to the committee, but in the EU directive there are sanctions against breaches of confidentiality, for example. If someone raises a concern and does it in confidence, then those guarantees are now...there are actual sanctions.

There have been cases that have happened in the U.K., for instance, and this is because the private sector is also covered, but I think these examples go across sectors. An individual had tried to find out an identity and had been individually sanctioned within an organization. The organization was sanctioned and the individual—this was at a bank—who tried to find out who it was who had raised a concern, even though it had all been dealt with properly by the whistle-blowing system, undermined the whole system in so doing. They then found themselves with their regulator, who was saying, “You can't do that, because it undermines your system, and it works, you know, until you wanting to know who it was undoes it.” That's one of the key things that has come through.

As well, in Australia, I think there is now a duty of care that they're putting on some of the organizations, so that you have to show that it's not just that you failed an individual whistle-blower. It's that you're failing by a system that clearly won't be taking these into account properly, or there isn't the training or there isn't another aspect.

There are some good examples. Again, Canada has this opportunity to actually put some teeth into its law, and I think that is so important. It isn't just about information flowing. It's about making sure it can flow.

[The Chair, Conservative, Kelly McCauley]

Thank you very much. That is our time.

Mrs. Block, you have five minutes, please.

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

Thank you very much, Mr. Chair.

I join my colleagues in welcoming all of you here today. It has been extremely eye-opening and beneficial to hear from such esteemed experts, but also from whistle-blowers themselves, and while the testimony has been somewhat disturbing, it has also been very compelling.

I want to start, Mr. Bruyea, by thanking you on behalf of my colleagues for your service to our country and for appearing here today.

One of the areas of concern that has been raised in terms of improving protections for whistle-blowers, and it is perhaps an area that is key to addressing the issue, is the Office of the Public Sector Integrity Commissioner. We have heard some testimony that this office has seemingly been compromised by conflicts of interest, often because individuals who are recruited into that office and into that position are from the bureaucracy themselves.

I am wondering, Mr. Bruyea, if you have ever availed yourself of the services of the Public Sector Integrity Commissioner and, if you have, if you could share your experience with us.

[Sean Bruyea]

Certainly. I did in 2010, when the news broke, not only about my story but of course also about the fact that Ms. Ouimet—the controversial first Public Sector Integrity Commissioner—hadn't even considered my file to any degree whatsoever. It took the media appearance of me and others. It became sort of a partial cause célèbre to say, look, it's so obvious there was wrongdoing in my case. Why didn't you do something?

Later on I met with Monsieur Dion and some of the members of his staff. I remember sitting alone in a room with a legal adviser. She'd taken me away. I was so prone to recording comments because things had gotten so out of hand over the previous five years that I would record any of my interactions with any public servants. I had forgotten my recorder. That day, she got me in the office—because she was so friendly—and she closed the door. She turned from Jekyll to Hyde, and she said to me, “Why do you want to get anything else? Haven't you got enough? You got enough media coverage. Why do you want any more from our office?” I was absolutely floored that she genuinely saw my reporting wrongdoing as a personal attention-getting mechanism, when it wasn't at all about me but merely to help those who would come after me or others who would be treated in the same manner.

I availed myself of the legal representation, of the $3,000. It took almost $1,000 to draw up the justification for the bill, so my lawyer ended up getting about $2,000 out of that deal. It was completely inadequate. I know that's beyond the committee and the private member's bill.

I would further add that David Hutton and I sat on the advisory committee of Mr. Dion. He was less than remarkable in that position. Why would he be anything more than remarkable, since he was just waiting for his next job? He chose to speak out when it was probably going to be his last job. That's the problem when you appoint bureaucrats, because they rely upon PCO and the goodwill of government to get their next appointment. Hopefully on the agenda in the future will be an appointments process that takes individuals who are neutral and non-partisan and who are not chosen by PCO or PMO.

Thank you.

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

Thank you very much.

I would like to open up the next question to anyone who feels they have an answer. Are there any examples in other jurisdictions with equivalents to this office that could be held up as good examples for us to take a look at?

[Tom Devine]

I can help with that question.

The U.S. Office of Special Counsel is the federal whistle-blower protection agency in the United States. It's had a very “roller-coaster” history.

There have been many extended periods in which whistle-blowers have had the same perspective that you folks have had towards the Integrity Commissioner. We would have to warn people against sharing their evidence. It would be turned right over to the agencies that were retaliating against them, like a source of free discovery for the people who were the bullies. They would not take any action against the issues the whistle-blowers had raised.

We fought for the integrity of that office. In the Whistleblower Protection Act, they were stripped of their authority to take any actions that would undermine the interests of those who were seeking help. They might not help everybody, but they couldn't turn on them and make things worse.

We enfranchised whistle-blowers into the participation and review process of acting on their disclosures, because a public integrity commissioner can't do it alone. They can't possibly have the necessary expertise for all the far-flung activities through which power can be abused. They have to team up with a whistle-blower. We institutionalized that in the law.

It's not a panacea, but I would give the Office of Special Counsel in our country a B to a B minus now. That's a lot better than it was.

[The Chair, Conservative, Kelly McCauley]

Thank you very much.

Ms. Thompson, we turn it over to you for five minutes. Go ahead, please.

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

Thank you, Mr. Chair.

Welcome to the witnesses. Thank you so much for coming to committee. I'm sorry there isn't more time today.

I'd certainly like to speak with all of you, but because we are coming to the end and I have only the five minutes, I'd like to focus my questions on you, Mr. Devine. I really appreciate your being here.

I want to focus on support, because you've spoken to this and it's quite important. Bill C-290 includes a requirement for chief executives to provide support for disclosures. However, there's no definition or direction on how this should be implemented. Would this make it difficult to establish an approach to how these supports should be created and maintained, and could this be addressed in an amendment?

[Tom Devine]

Absolutely. It can be refined. The bill establishes the principle, but implementing that principle will require some hard work. It could be done through amendments now, or through the national review coming up. It's absolutely essential.

Whistle-blowers are flying blind. They don't know what their rights are oftentimes. They're just acting on their values, and they're doing it in a kind of Machiavellian context and environment, where just acting on your values openly and blithely may end up putting an X on your professional chest.

They need to be trained in what their rights are and how to exercise them strategically, responsibly and effectively. That requires some training. It requires an office that doesn't have a stake in any conflict and that has expertise on how to teach them to use this law properly. Its significance as a priority can't be over-emphasized.

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

Staying with support, the bill also wishes to allow an individual to disclose to any supervisor in the organization. Would it not be more beneficial to disclose to a supervisor in the line of authority, to ensure the issues can be properly addressed? If not, what wider range would be a more appropriate avenue?

[Tom Devine]

As a matter of fact, most whistle-blowers, the overwhelming majority, make their disclosures to their boss. They're not looking for trouble. They see a problem, and they say, “Boss, we have a problem. We need to deal with this.”

In response to the earlier question on loyalty, the studies have consistently shown 90%-96% of whistle-blowers never break ranks, because they think they're defending the organization and its mission. They just don't realize there's a conflict between the organization and its stated mission.

I agree with Bill C-290's broader scope of supervisors, because it allows the employee to circumvent when there's a conflict of interest. What if they learn, for example, that it's their boss who's the wrongdoer? They don't want to share all their evidence of that. They want to bring it to a party that doesn't have that conflict of interest.

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

I'll just become a little more general now.

The bill includes an addition of political interference to the definition of wrongdoing, but unfortunately there is no definition. Will clarifying the definition to include protection for whistle-blowers who disclose violations of the Conflict of Interest Act be appropriate?

[Tom Devine]

I don't think there's really any public policy credibility to challenge your suggestion. Conflict of interest is at the core of most abuses of power. Generally, whistle-blowers are challenging the impact from conflicts of interest, so you're getting right to the heart of it.

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

I know I'm getting to the end of my time.

Are there additional comments you would like to make in the time remaining?

[Tom Devine]

I prepared an extensive written testimony, but it was too late to be translated for this forum. I'd recommend studying that. I put a lot of effort into it. The Whistleblowing International Network and the work I did with Anna Myers regarding the criteria for the European Union whistle-blower directive will give you a bit of an introductory course on that precedent, which we've all been endorsing.

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

Allow me just very quickly to thank the witnesses. Thank you for your courage in keeping this very important bill active and moving it forward. Certainly, the work you've done is tremendous. I'm hopeful that others will benefit from the absolutely horrible experiences you've had. I believe we can do better, and I think this is an important step forward.

Thank you very much.