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.