National Defence Committee on March 26th, 2021

[Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, Privy Council Office]

Thank you, Madam Chair and members of the committee, for the opportunity to appear again before you today, following my appearance February 19 alongside the deputy clerk of the Privy Council.

I have been the deputy secretary to the cabinet for senior personnel and public service renewal since May 2016. Prior to that, I was assistant secretary to the cabinet for senior personnel, a position I had held since October 2014. As deputy secretary to the cabinet, my responsibilities include advising the Prime Minister and cabinet on Governor in Council or GIC appointments.

The Privy Council Office supports the government in circumstances where issues arise with GIC appointees. In doing so, we provide independent, non-partisan advice and support to the government. When there is evidence of inappropriate conduct on the part of a GIC appointee, we provide our best advice to the government on how to address the issue.

In my previous appearance before the committee, I felt it was important to protect the confidentiality of my discussions with the former ombudsman for the Department of National Defence and the Canadian Armed Forces, and the integrity of the ombudsman's office and its processes. Since that time, the committee has heard a number of witnesses, and further information has been presented.

With certain details having been shared by the former ombudsman, I can confirm that in early March 2018, the Clerk of the Privy Council asked that I follow up on an issue that the ombudsman had raised with the minister regarding potential allegations of misconduct against the chief of the defence staff. I was asked to follow up immediately, which I did.

A follow-up exchange of emails between me and the former ombudsman took place March 5 and 6. In that exchange, I explained that I was seeking to better understand the nature of the complaint, in order to provide advice to the minister in the context of his role in supporting the Prime Minister and the Governor in Council on appointments.

I met with Mr. Walbourne on March 16. In my email exchanges and in my meeting with Mr. Walbourne, I did not receive information upon which to take further action.

On the specific issue the committee is studying, given that the Canadian Forces national investigation service has opened an investigation, I am limited in the responses that I can provide, to respect the integrity of the investigative process. Protecting the confidentiality and integrity of any investigative process is critical for ensuring that individuals feel safe to come forward and that we respect their privacy.

I know we all agree that any instance of harassment is unacceptable. Every situation is unique, but the right to a safe workspace, where individuals are treated with respect, dignity and fairness, applies to everyone working within a federal workplace. As a senior member of the federal public service, this is a fundamental focus for me in carrying out my responsibilities.

Once again, I thank the committee for the opportunity to appear before you today. I would be pleased to answer any questions you may have to the best of my ability and within the limitations that I have noted. I can also provide information of a general nature regarding PCO's role in the management of GIC appointees, should the committee wish.

[The Chair, Liberal, Karen McCrimmon]

Thank you very much, Madame Sherman.

Over to you, Mr. Boland.

[Lieutenant-Colonel, Retired) Bernie Boland (As an Individual]

Madam Chair, thank you for this opportunity to testify. I'm Bernie Boland, a retired lieutenant-colonel who served honourably in the Canadian Armed Forces for over 30 years. For the past 12 years, I was an engineer in the public service. I retired on December 30, 2020.

I'm testifying because DND has demonstrated an inability to act in an independent judicial fashion that honours due process, defends procedural fairness and respects the rule of law.

In 2016 I reported wrongdoing and misconduct when an employee I had the privilege of supervising requested that I report her harassment and human rights violations by a senior engineering manager. As compelled by oath and the code of values and ethics, I reported it. Her case is now at the Canadian Human Rights Tribunal awaiting adjudication on discrimination and deferential treatment due to age, gender, ethnicity and being a Muslim.

Once I reported, everything in the workplace changed. I faced reprisal and retaliation. I was silenced, denied due process and had my procedural fairness rights withheld. To date, external to DND, I have submitted to the Federal Court of Canada an application for judicial review of DND's grievance dismissal, given notice to the registrar of the Canadian Human Rights Tribunal to be a party to a tribunal hearing, and filed a complaint with the Ministry of Labour on DND's breach of my Bill C-65 rights. Internal to DND, I have submitted formal complaints and grievances, all to no avail.

I also provided to the deputy minister detailed analysis of the lack of due process, procedural fairness violations, conflict of interest and decision-maker bias. Additionally, I provided to both the DM and Minister Sajjan independent analysis—the Lowry report—from a retired RCMP fraud investigator that confirmed and corroborated decision-maker bias, conflict of interest, denial of due process and violations of procedural fairness. It was ignored. However, because I reported the harassment and human rights violations of the employee I supervised, DND secretly, in a formal departmental submission to the Canadian Human Rights Commission, made me the scapegoat to exonerate those responsible and culpable. This DND submission was made without my knowledge and with no opportunity to defend myself. It was condemnation without any representation.

Once I became aware of DND's secret scapegoating submission, I formally complained because the director general, workplace management, secretly made me the scapegoat; Troy Crosby, assistant deputy minister, materiel, determined that it was proper conduct for the DG to secretly make me the scapegoat; and Jody Thomas, the DM, condoned DND's secret scapegoating of me as proper departmental conduct. Without any investigation, DND dismissed my complaints.

I also submitted a grievance and a request for an independent ethical review on the myriad conflicts of interest, bias, denial of process and withholding of procedural fairness rights. DND summarily dismissed these.

DND's justification, as stated by assistant deputy minister of human resources, civilian, Mr. Choi, is the following: “Mr. Boland speaks to not having an opportunity to defend himself. It is to note that it is the parties to the CHRC complaint (the DND and the complainant to the CHRC) who are entitled to procedural fairness rights. The DND, as the respondent to the CHRC complaint has no responsibility to gather information from all potential witnesses: this is the responsibility of the CHRC appointed investigator. The conduct is therefore not considered improper. ...the complaint pertains to a single matter and does not meet the threshold for a severe incident. It will not be investigated.

He goes on to say that “the complaint pertains to a single matter and does not meet the threshold for a severe incident” and it will not be investigated. The CHRC submission is a protected document: “Mr. Boland does not have access rights to the submission and therefore Mr. Hooey could not have reasonably known that it would cause offence or harm, nor can it be considered ‘directed at’ Mr. Boland.”

Mr. Choi's justification makes it unequivocally clear to me that DND will not act in a procedurally fair fashion. DND takes no responsibility to ensure that human rights are fulsomely and truthfully addressed in DND by DND. DND considers it proper to secretly make those who dutifully report misconduct the scapegoat for the misconduct they report.

Despite its zero tolerance policy, DND will unilaterally and arbitrarily dismiss misconduct to excuse its obligation to investigate it.

DND believes institutional secrecy absolves its wrongdoing.

Since 2016, in my effort to be heard, have due process applied and be treated in a procedurally fair fashion, I have formally engaged many, including the Prime Minister; Minister Sajjan; my member of Parliament, Pierre Poilievre; the Minister of Labour; and the ombudsman.

Despite these efforts, DND refuses to honour its commitments, and render due process and respect for the rule of law.

On January 1, 2021, Bill C-65 and workplace harassment and violence prevention regulations came into force. The deputy minister assigned Mr. Choi coordination and implementation responsibilities. Mr. Choi violated my rights, enshrined in this legislation, by denying my right to an investigation.

On March 3, 2021, on the advice of my legal counsel, I requested the Minister of Labour to restore my rights and remedy this breach. I have yet to receive any acknowledgement from the Minister of Labour.

Thank you, Madam Chair.

[The Chair, Liberal, Karen McCrimmon]

Thank you very much, Mr. Boland.

I will now open the floor for questions.

Mr. Bezan, you are first.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Madam Chair, and thank you to our witnesses.

Lieutenant-Colonel Boland, thank you for your service, and thank you for coming forward, outlining the disturbing culture within the Department of National Defence. We thought we were only dealing with the Canadian Armed Forces, but it seems there are cover-ups happening at the department. I'll be asking questions of you later on in the committee.

I want to concentrate my questions first to Ms. Janine Sherman. Welcome back to committee.

You said in your opening comments that you did not receive information upon which to take further action back in March 2018, so I suspect you'll have lots of latitude in answering the questions we have for you today, since you never found anything, in your opinion, that warranted an investigation in 2018.

Can you tell us, Ms. Sherman, exactly who, from the Prime Minister's Office, instructed the Privy Council Office? You said it was Michael Wernick, the Privy Council Clerk at that time, who asked you to meet with the ombudsman.

Who told you and Mr. Wernick to follow up with the allegations about General Vance?

[Janine Sherman]

I'm not sure you have seen the emails between the people who were involved and me. They have been released through access to information, and that information has been redacted as personal information.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I do see the email here on Friday, March 2, between you and a redacted person. I assume that was with Mr. Walbourne at the time, or was that a different individual?

[Janine Sherman]

Are you referring to the email exchange on March 2?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Yes.

[Janine Sherman]

It was not Mr. Walbourne.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

It was not Mr. Walbourne.

Was it somebody else within the Privy Council Office or the minister's office?

[Janine Sherman]

All I can say is that it was not a public servant, because the information is redacted as personal information.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

When you made the decision to reach out to Mr. Walbourne, did you tell Mr. Walbourne why you wanted to meet with him?

[Janine Sherman]

Yes.

As I mentioned, the Clerk of the Privy Council had asked me to follow up on the information that Mr. Walbourne had raised with the minister, so I did follow up with Mr. Walbourne in that context.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

After March 2, when you reached out to Mr. Walbourne, as well as the other email conversation that you had, who else in the Prime Minister's Office and the PCO did you talk to before you met with Mr. Walbourne on March 16?

[Janine Sherman]

That is personal information at this point in time. I am not able to comment on who those people were. I worked through the Clerk and my boss, in terms of the next steps we would take.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

In this study, we do need to know some details about who knew what within the department, the minister's office, the Prime Minister's Office and the PCO.

I don't believe that to say that those are personal, confidential discussions when it involves—as you describe them—a GIC appointee,.... We know that means General Vance, as well as the ombudsman, Gary Walbourne, who was also a GIC appointee. Those discussions should be made available for public record. That's why we ask for the production of documents, so we can get to the bottom of who knew what.

Who drafted the memo for you that you used as your briefing note for your meeting with Gary Walbourne on March 16, which has been made publicly available?

[Janine Sherman]

First, I can maybe clarify one point. In those emails, when I refer to a GIC appointee—and as you pointed out, it is now known to be the chief of the defence staff—the emails were crafted at that time with respect for the confidentiality of who we may be speaking about. That's the reason the chief of the defence staff was referred to as a GIC appointee. It was done out of respect and confidentiality in terms of the communication with the ombudsman.

The note that you refer to was prepared here in my office by my staff.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Just so I'm clear, in all these redacted documents that came up, the redacted portions aren't necessarily the name of the victim. You're saying that this is to protect the confidentiality of political staffers.

[Janine Sherman]

No. Those redactions were made under the construct of the Privacy Act and the Access to Information Act. Personal information does not apply to a public servant. [Technical difficulty—Editor]

[The Chair, Liberal, Karen McCrimmon]

We lost you there for just a minute, Madame Sherman.

Could you start this answer over again, please?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Please reset the clock.

[Janine Sherman]

Those redactions are done on the basis of the statutory requirements in the Privacy Act and the Access to Information Act, so public servants' names are not redacted. For non-public servants, that does constitute personal information and that is the reason it is redacted.

In the interests of being helpful, I could indicate in a generic way that those interactions were between myself and people in the Prime Minister's Office.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I appreciate that very much. Thank you.

Did you make the decision alone or under consultation with others not to pursue an investigation and not to refer this to the national security adviser?

[Janine Sherman]

As a matter of course, Madam Chair, in my responsibilities, I would not make a decision alone in that respect. I did meet with Mr. Walbourne myself. After that discussion, I would have briefed up to the people who had been involved in the discussion to pursue and try to get more information about the generality of the complaint.

I would have done a follow up in terms of, certainly, the Clerk.