Government Operations Committee on May 1st, 2023

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

I thought that might be him, and I think it's lovely that he's here supporting you today, considering everything he's had to see you go through.

Madam Brill-Edwards, I just want to share a small anecdote with you. Ms. Gualtieri will know that I do this. I spent the summer of 2000 at Merck Pharmaceuticals in Whitehouse Station—the summer between the two years of my MBA—and that was when Vioxx was all the rage. I remember seeing the marketing department. Everyone was completely on fire for this drug. Lo and behold, that fall would begin the downfall as that evidence became public and as America and the world became aware of the fallout of that.

Ms. Gualtieri, I know you mentioned that, so I'm just saying that I've seen what you're describing.

Madam Myers, I'm always very big on comparative studies. You gave the example of the European Union. If I was conducting a comparative study on which we could base our new whistle-blower protection, could you provide me with the top international resources on that? You mentioned the European Union, but if you could provide a short, comprehensive list, please....

[Anna Myers]

Do you want me to provide that later, or do you mean right now?

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Well, you could do it verbally, to begin, right now, and then more comprehensively later.

[Anna Myers]

Sure.

Many of the principles that Tom Devine has put in and that I was discussing—the five I mentioned—are in the EU directive. This will mean that 27 member states will have to transpose the directive into their national systems. There will be the ability to raise issues internally. If you work within the government, that's, obviously, within the government or to a ministerial body, but you also are able to be protected even if you go public under certain circumstances. The range of protected disclosures is going to be in all of these laws. The laws that already have it are the U.K.'s Public Interest Disclosure Act and Ireland's Protected Disclosures Act. Serbia, which isn't even part of the EU, has it, and France now has one of the most advanced laws.

Many years ago, many of us were told that whistle-blowing was very Anglo-Saxon, that it really fit within the common law, that it would never be part of the French system, but now France has one of the most extensive laws. It actually protects those who facilitate whistle-blowers in making their disclosures, and that can be a legal person. Like organizations that Tom Devine works for, many within the Whistleblowing International Network that I run would be protected if they supported the whistle-blower and they, too, found themselves under attack. That can be through criminal law and civil law for defamation, or through other forms of attack using the legal systems.

These are quite comprehensive laws. I am very happy to put together a list of some of those issues, where they've already existed, and what the EU directive will change.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you.

Mr. Devine, you gave—in the last third of your speech, I believe it was—four recommendations. Could you provide those again, please, and expand on them with the minute we have left?

[Tom Devine]

Yes, Madam.

I think the highest priority is to make sure that the rights can't be cancelled at will by the institutions that may be abusing power. It's a very common tactic to make waiving your rights a prerequisite for a job—as another witness described it in a different context—and to cancel...to have agency regulations that cancel the rights. That's in Canada's current law for public freedom of expression.

Burdens of proof can't be emphasized enough, because otherwise we're vulnerable to arbitrary decisions.

What I'd like to really emphasize in answering your question is the importance of training. Training and education make all the difference in the world. The first step for changing cultural bias is passing a law. That's step one. However, the rights have to take root from that law. That means educating people that they have the rights, educating employers of their responsibilities with respect to those rights, and educating those who enforce them that they're credible, significant and important for society. In Serbia, where they've required—

[The Chair, Conservative, Kelly McCauley]

I'm afraid that's our time, Mr. Devine.

[Tom Devine]

—certification, the success rate is 80% compared to 20% globally for whistle-blower cases.

[The Chair, Conservative, Kelly McCauley]

That's perfect. Thank you.

Mr. Fergus, go ahead, please.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair.

I'd like to thank the witnesses who are with us today.

Unfortunately, given the time we have, I will only be able to ask a few questions. I'd like to start with Ms. Myers.

Ms. Myers, you indicated that the European model would probably be the best one going forward in terms of protection of public servant whistle-blowers. I think that would be a place where we would like to take a very close look.

Before I ask my question, I should quickly give a bit of an overview. We understand that Bill C-290, of course, is a private member's bill. There is only so far that it can go in terms of being able to do what Mr. Devine indicated with respect to changing the culture. There are other aspects that would have to come from a government bill to be able to do that. I know the government is considering and working towards updating the PSDPA.

Ms. Myers, Bill C-290, which is before us here, includes an opportunity to remove the references to “good faith” and “reasonable grounds” from the screening sections of the act. I asked one of our witnesses here last week the same question that I'd like to ask you. If you were to remove that aspect, and if there is no sense of requiring that the whistle-blower reasonably believes that what they're reporting is true, is there a possibility therefore that it could lead to some frivolous or perhaps intentionally malicious disclosures? Have you seen that in other jurisdictions?

[Anna Myers]

No, and I'd like to explain.

In the U.K. context, it was removed. The “good faith” test was taken out of the Public Interest Disclosure Act. It's a very real example.

What ended up happening was that it became a bar to even getting past the first hurdle in a legal case. It became the case that the individual's motives were what was on trial. Lots of times they were asking if the whistle-blower behaved reasonably, without asking.... Basically, what happens in the U.K. environment is that you show that you raised a public interest concern, and you show what the misconduct was. The burden then moves...the misconduct, the retaliation, is against them. Because you've shown a prima facie case, it switches to the employer to disprove.... What they have to show is that any retaliation that happened was actually fair—independently fair—and had nothing to do with the whistle-blowing.

Having it as a bar to having the discussion.... There is enough in people's workplaces. Most people want to raise things internally. If you think of yourself, you don't immediately think that in your job you would have gone directly to the chief executive or to a non-executive director, or immediately called a regulator. The law is trying to protect the individual who has suffered for raising concern. Removing “good faith” doesn't suddenly give the green light to everybody to speak up and do it with motives that are not good.

I think we've shown time and again that when you have “good faith” in there, it tends to focus all the efforts of the courts, and the minds of the other side can actually impugn the motives of the whistle-blower before we even get to the next point.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Ms. Myers, I'm sorry, but I didn't mean to give the impression.... I agree with you that it's important to remove “good faith” and “reasonable grounds”. I was wondering if there was a reasonable mid-sentence, whether there is some initial cut-off on that front, so you don't have those frivolous cases.

Perhaps I'll ask that of Mr. Devine, given his experience as well.

[Tom Devine]

Yes, sir, the “good faith” test has been very dangerous, but the “reasonable belief” test is actually a universally accepted, legitimate merits test for whether a whistle-blowing disclosure deserves to be protected. The elements for it have generally been that you genuinely believe the issues you're raising, and that peers who have similar knowledge and experience could agree with you—not that they have to. Basically, your views would have legitimacy within the community of professionals or colleagues you work with.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I'm glad you talked about this. It's that reasonable belief that I think is the right ground for that.

What does that avoid, in your view?

[Tom Devine]

It avoids subjective judgments about whether speech should be protected. When you put the whistle-blower's motives on trial, it becomes a personal judgment of the person. The reasonable belief test means that we're going to be focusing on the credibility of the evidence that the whistle-blower is presenting. That's really the point of whistle-blower protection laws.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much.

[The Chair, Conservative, Kelly McCauley]

Thank you.

Ms. Vignola, go ahead for six minutes, please.

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

Thank you very much, Mr. Chair.

Ms. Brill‑Edwards, Mr. Bruyea, Ms. Gualtieri and Mr. Devine, thank you for being with us today.

Ms. Brill‑Edwards, I'm sorry to hear that some career options became inaccessible due to your honesty. That should never happen.

Mr. Bruyea, you went through hell, and I think Satan himself would not want to go through what you went through. I am sorry. Once again, that should never happen.

Mr. Devine, you said the highest priority is to reverse the burden of proof. Why is that so important?

[Tom Devine]

To avoid arbitrary decisions, you have to have rules of the game for how much evidence it takes to win and to prove your charges.

Right now, Canada's law is one of the few in the world that don't have any standards for what it takes to prove retaliation. Those standards have been very well developed over the decades. The European Union directive and the United States standards are pretty much equivalent to each other. I think the EU burdens of proof are a little more cleanly written. The U.S. ones have some idiosyncrasies for our legal system.

Without burdens of proof, a whistle-blower is at the mercy of the whims of any decision-maker. That means the rights are totally dependent on subjective factors, rather than objective, credible factors grounded in the public interest.

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

How would reversing the burden of proof apply to Canada, within the framework of the Public Servants Disclosure Protection Act?

[Tom Devine]

The EU directive burdens of proof have been very flexible for countries with a variety of national legal systems, because they are kind of core principles.

It doesn't matter so much from country to country how much evidence it takes to prove your point. There might be different points you have to prove. There might be different procedures or structures for how you do it.

In terms of the quantum of what proof is necessary to prove that your rights are violated, that has been pretty global. The standards are very consistent universally.

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

Thank you.

Mr. Bruyea, you think veterans are especially vulnerable to reprisals. Can you explain to the committee how that vulnerability should also be included in extending the scope of the bill to amend the Public Servants Disclosure Protection Act?

[Sean Bruyea]

Thank you very much for the question.

I came up with a standard where I was thinking.... Not being in deep with the law, what occurred to me is that public servants up this point have been seen as the only ones who can be whistle-blowers. The reason is that they meet two criteria: They have insight within their job, and they have a vulnerability to lose that job and suffer other repercussions in the job space.

Bill C-290 does an excellent job of addressing those two concepts and expanding them to contractors who have both insight and vulnerability, as well as former public servants, former RCMP and temporary workers.

In that sense, if we're going to use the criteria of vulnerability, veterans are the most vulnerable of any federally serviced individuals, in that they are often wholly dependant on the Department of Veterans Affairs. Should any one at any level decide to take revenge, then they jeopardize their complete financial security, their complete medical care and often the stability of the family and the home.

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

Thank you.

Ms. Gualtieri, the principle of loyalty was mentioned several times.

Just one question comes to mind on the subject. To whom is it absolutely essential that officials give their loyalty? Is it to their bosses, meaning the people at a higher level of the hierarchy? Is it to the citizenry, for whom services are intended? Any other answer is also possible.

Ms. Myers and Mr. Devine are welcome to answer the question as well.

[Joanna Gualtieri]

I think that's an excellent question, because it's one that has been debated for a long time. Public servants will tell you that their loyalty is to the people of Canada, but this does not conflict...in other words, it is not at odds with loyalty to a boss if the boss is a good boss. Ultimately, they are one.

If you had to choose, it would be because a boss is in some way not reflecting the values of this nation, our constitutional values or our human values. Ultimately, most public servants—all public servants, I believe—will go to work feeling that they are serving the people. In so doing, they will hope that they are serving the bosses as well.

If they have to make a choice, they are put in a terrible dilemma. That is why we are seeking to protect them. It is so that when they make that choice, they won't be slaughtered for continuing to serve the people.