OGGO Committee Meeting
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Standing Committee on Government Operations and Estimates
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EVIDENCE
Monday, February 1, 2021
[Recorded by Electronic Apparatus]
[English]
I call this meeting to order. Welcome to the 16th meeting of the House of Commons Standing Committee on Government Operations and Estimates.
The committee will meet today from 3:08 my time, which is 4:08 your time, and we will try to stay on time and hopefully get through this as quickly as we can, so that we can have time to hear clearly from the witnesses and to be able to ask questions.
We will hear witnesses today as part of the committee's study on the government's response to the COVID-19 pandemic.
Just to inform the members, the committee will not meet on Wednesday, February 3. We expect a large number of votes following question period that day—we understand close to five—which is going to add an extended amount of time that will prevent the committee meeting that afternoon. We tried to reschedule, but we were unable to, so we have rescheduled the planned witness for the next meeting of the committee on Wednesday, February 17.
To ensure an orderly meeting, I would like to outline a few rules to follow.
Interpretation in this video conference will work pretty well like a regular committee meeting. You have the choice, at the bottom of your screen, of floor, English or French. Before speaking, please wait until I recognize you by name. When you are ready to speak, you can click on the microphone icon to activate your mike. When you're not speaking, your mike should be on mute.
For those participating in the committee room, please note that masks are required unless you're seated and when physical distancing is not possible.
My understanding is that each witness has an opening statement. You will each be given five minutes to speak. We will go in the order I have on the notice of meeting.
With that, I will invite Mr. Bron to deliver his opening statement.
Mr. Bron, the floor is yours for five minutes, please.
Good afternoon, Mr. Chair and members of the committee. Thank you for inviting me to speak on this important issue, whistle-blowing during the COVID pandemic.
The group that I represent, along with Mr. Cutler and Mr. Holman, was made up of a range of Canadian experts in transparency and whistle-blowing, who were brought together to seek solutions to a problem: how to detect and correct wrongdoing in both the public and private sectors during the COVID emergency. I've also been researching whistle-blowing in Westminster governments for several years.
At the start of the pandemic, there were numerous stories of shady deals for PPE, not just in Canada but all over the world. Later, I heard of employers failing to pass on the emergency wage supplement to their workers and of employees being too afraid to speak up for fear of losing their jobs.
In Ontario, Ashley Jenkins was fired for speaking up on conditions in a long-term care home. Nurses in Quebec complained of similar reprisals. You may also recall that the Canadian Armed Forces sent in medical personnel to assist in long-term care homes in Ontario. The horrifying details of what they found were leaked to the media, revealing just how badly provincial oversight had failed.
These cases represent only a tiny fraction of employees who have observed wrongdoing. Research shows that only about half of employees will ever report serious wrongdoing, and that only about 10% ever disclose outside of the organization, usually when internal disclosure has failed. Less than 1% of them will ever approach the media. This implies that there are hundreds of cases of COVID-related wrongdoing across Canada that we know nothing about and that may be ongoing.
Transparency, as my colleague Mr. Holman will attest, is one part of the solution. Making whistle-blowing safe is another. Study after study has confirmed that insider tips—whistle-blowing—are the most effective way of detecting misconduct in organizations, beating out audit, management review, law enforcement, and everything else.
Despite the value of the information they provide, whistle-blowers in Canada are not adequately protected. Even internal whistle-blowing is punished, partly to send a signal to other workers and partly to head off external whistle-blowing to a regulator or the public.
Employers carry out reprisals, because they can get away with doing so. The most comprehensive whistle-blowing laws in Canada, which cover only the public sector, don't really work. I know this because my colleagues and I have been comparing them with best practices for years. Most private sector workers have no protection at all, outside of common law, which is a difficult and expensive route to take. A few laws exist in different sectors, but they're disconnected, ineffective or just unused.
For this reason, Tom Devine, one of the world's foremost experts on whistle-blowing, called Canadian whistle-blowing law “a tissue paper shield”, meaning that it is utterly useless and deceptive. In fact, as Mr. Drouin and Mr. McCauley may recall, he said so to OGGO almost four years ago as part of the review of the federal whistle-blowing law. That review led to a unanimous report recommending changes. Unfortunately, none were adopted. This sets us apart from many other jurisdictions, such as the EU, which has just recently required all member countries to implement new and better whistle-blowing laws.
To try to address both the short- and long-term challenges, our group arrived at three recommendations related to whistle-blowing: one, that a COVID ombudsperson be appointed to receive disclosures and inquiries, to direct concerned Canadians to the right avenues and to help resolve disputes; two, that an awareness campaign be launched to inform Canadians of their rights to speak up, and of the disclosure avenues available to them; and three, that existing whistle-blowing laws be rewritten to meet best practices and expanded to include both the public and private sectors.
In closing, I will say that nobody is served by the current state of affairs: not whistle-blowers, not the public, not organizations or the government. The key point is that protecting whistle-blowers ensures that wrongdoing can't be swept under the carpet. As the long-term care tragedy painfully illustrates, unchecked problems metastasize and can cost lives. Effective whistle-blowing systems allow problems to be identified, competently investigated and more quickly corrected.
Accordingly, we ask this committee to recommend immediate action to advise and protect whistle-blowers now and in the future.
Thank you.
Thank you very much, Mr. Chair and members of the committee.
You've heard from Mr. Bron, and I'm going to be saying some of the same things. I'm going to say some of them a little differently and in a more general way.
We all know we're in the middle of a pandemic and there's no precedent that's being followed, so we all know mistakes have happened and will happen, but what do we do about them? Everyone has an opinion on what should be done. Criticism is easy from hindsight, but people involved in it are trapped, especially when people won't confess to mistakes.
I talk to quite a few whistle-blowers, just as Mr. Bron does, and maybe I'm talking to them more actively right now. There are two issues that come up continually. One is the fear factor of what's going to happen to them if they speak out. In addition, right now they're afraid of losing their jobs. Jobs have been lost around the country. We have less of a workforce than we used to. They're saying, “If I speak up, I'll be the next one to go”, so they don't want to.
The other thing they're really worried about equally is retaliation. Along with that comes the issue of trust. Right now, I don't know of a whistle-blower who trusts any public official of any party. They're scared. The officials have lost the ability to have the public trust them.
The laws, as Mr. Bron said, are weak to non-existent. The federal law is not really very good at all. In particular, I'm going to make a point that none of the laws, to our knowledge, has the reverse onus that's critical in good whistle-blowing legislation. The reverse onus means that in the case of retaliation the employer has to prove they did not retaliate, rather than the whistle-blower proving there is retaliation. Who has the power? Who has the documents? It's the employer, not the employee.
There are three fundamental ethical principles I'm going to mention, which have been brought up before. They relate to procurement, but they also...which has happened vastly in here. The three fundamental principles are fairness, openness and transparency. The federal ombudsman has addressed this and it has been brought to the committees before.
There are four reasons to sole-source only. I know I'm deviating from just the whistle-blowing, but I'm getting into where the whistle-blowing has had some effect and some things have happened.
There are four reasons, one of which is urgency. With the pandemic, the government—provincial or federal—is totally right that it's urgent. You don't have time to go through the normal procurement practices to get what you want. The issues of fairness and openness exist with competition. Fairness is equal treatment to all bidders, and competition has to be there to do that, and openness is providing everybody a chance to submit bids.
The government has made some attempts to do that to the extent possible, but transparency never leaves. Transparency is providing information in a timely fashion. It never changes and it never leaves, whether it's competitive or whether it's negotiated. It never leaves with HR, or with any facet of our public life or our private life. We have to be able to get the information out and be protected in getting it out. Right now it's not happening.
ATIP, which is another part of it, is not.... ATIP is a great way to park the information and delay giving you anything you want. I've had a lot of frustration in getting information that should be freely given, and some of it's very simple.
In conclusion, I'm going to be short and just say that mistakes happen. We all know mistakes happen. Some governments have admitted this. The provincial government in Ontario admitted it should have kept giving shots to people during Christmas. They stopped for two days; they admitted it was a mistake. There is absolutely nothing wrong with admitting a mistake.
The other thing is that details are essential. When are we going to find details? What we seem to hear from many people is that sometime in the future it will be okay. That's the over-the-rainbow type of defence. Yes, we all know one day in the future we'll be okay. The last report I saw, done by an independent organization, said that we will actually be out of the pandemic about the summer of 2022. That's not acceptable. We should have definite information.
The whistle-blowers will talk to me, but they won't talk to anybody else because they're scared of speaking out. They also don't trust the media anymore.
I'll leave it on that note. It is essentially the same as where Mr. Bron left it. We need a national law that covers the private sector, the public sector and the not-for-profit. We need one national, solid, good law for all whistle-blowers for reporting all wrongdoing in this country.
Thank you very much.
Thank you very much, Mr. Chair.
I would also like to thank the committee for once again inviting me to testify on how the public's right to know has been compromised during the pandemic, and what can be done about that problem.
I am a journalism professor at Mount Royal University in Calgary, where my research focuses on why we value information in democracies and the history of our country's freedom of information laws. As Mr. Bron mentioned, I am also a member of the Canadian COVID-19 Accountability Group, an ad hoc coalition of experts who joined together last year to recommend reforms to Canada's whistle-blowing and freedom of information laws within the context of the pandemic.
That expertise is why I am deeply troubled by the scale of secrecy we have seen from Canadian governments during the pandemic, which has only continued since I last testified before this committee. That secrecy has meant that the federal government has failed to provide the public and public officials with the data needed to track and account for billions of dollars in COVID-19 spending, including the costs and contracts for COVID-19 vaccines.
It's meant a failure to maintain the usability of Canada's already broken access to information system, and it's meant that the government has too often refused or delayed answering basic questions from the news media and the opposition about its pandemic response, from when vaccines will arrive in this country to whether the Prime Minister has spoken to the leader of one of the companies making those vaccines.
That secrecy didn't just start during the pandemic. History has shown that it is an endemic part of our system of government, no matter who holds power in Ottawa. It's because this system is literally built around the notion that decisions must be made in private. The Prime Minister said as much last month when he argued that the need for accountability and openness must be balanced against “an ability to grapple with very difficult questions in a fulsome way.” Since many of the questions government deals with are difficult questions, the result is very little transparency, something that is reflected and reinforced by the fact that everything that happens in cabinet, the government's principal decision-making body, is a secret.
This belief in the necessity of private decision-making has penetrated every part of government, from the highest minister to the lowliest bureaucrat. Not only does this attitude infantilize the Canadian public and degrade our democracy, but it also threatens the political and social stability of our country.
People want information because they want control and certainty. They want information so they can make better decisions about the world around them, thereby controlling public and private institutions. They want information so they can better understand the world, thereby feeling more certain about what's going to happen in it.
During an emergency, such as the one we're living through right now, this need for information accelerates. That's because Canadians want to make the best possible decisions to keep themselves safe, while ensuring that governments and corporations are doing the same thing on their behalf.
The costs of not providing this information are severe in the post-truth era. If there's an information gap, there is now a substantial risk that it will be filled with misinformation and disinformation, and we can see that in the anti-masking protests that have happened across the country and in the conspiracy theories those protests are based on.
This is why it is imperative that the federal government be more open with Canadians during this emergency. These times demand less secrecy, not more secrecy. The truth is the only counter to the lies that have become such a pernicious part of the public sphere.
To that end, the COVID-19 Accountability Group has recommended that the government be legally required to proactively release a number of broad categories of unredacted records within 15 days of their being prepared, including health and safety inspection reports, public health research and government contracts. There is no reason Canadians should not have access to the truth in these records, whether we're in a pandemic or not.
In combination with the whistle-blowing reforms recommended by my colleagues, we believe these measures will do much to ensure Canadians' confidence in the government and preserve evidence-based decision-making at a time when it's under threat of wrongdoing and abuse within the public sector.
Thank you so much for the opportunity to speak.
Thank you very much, Mr. Holman.
We will go into our first round of questions. We will start with Mr. McCauley for six minutes.
Thanks, Mr. Chair.
Gentlemen, welcome back.
First of all, I want to thank Mr. Bron and Mr. Cutler for doing so much work with us on whistle-blowers, and I want to thank the other committee members who were with us in the 42nd Parliament: Mr. Drouin and, of course, Mr. MacKinnon. Despite their best efforts, the government has dropped the ball and done nothing with moving forward on that legislation. Hopefully, one day we will, because I agree that it serves no one when we're hiding information.
Mr. Cutler, I want to start with you. What do you think it says about our country when both Trump's America—and, of course, it has changed over to Biden—and the U.K. have released details on their COVID contracts and we're continuing to refuse to release that information?
There's no reason why that information shouldn't be made public quickly. As you know, I deal in procurement extensively, and I love to read contracts. I'm a person who likes the details, not just “Oh, we have a contract.” I can say “We have a contract” about anything, but unless they give me details about it, it could be meaningless. They could have a contract with Pfizer, for example, and it's going to be two years before anything's produced, but unless they give me the details, I have no knowledge, really.
Generalities are “Trust us, please,” rather than “Here are the facts.”
Mr. Bron, I'll ask you the same question. What do you think it says about our country, our government, when other countries are openly posting their contracts for vaccines, and we're still hiding behind commercial sensitivities or “It's a competitive world”, which we hear a lot?
I would go back to Mr. Holman's comments about a long-standing culture of secrecy. I worked in government many years ago, and there was almost an attitude that people asking for information were acting a little out of line and out of place. What do they want this information for?
It's partly a result, I would say, of our highly oppositional Westminster system, and it's partly a result of a bureaucratic culture. It doesn't reflect well. As Mr. Cutler said, there's no reason why these contracts can't be put out in the public, why much of this information can't be put out there. The problem is that this capability was never built before in the past, and that needs to change in the future.
You bring the point about the PPE. I recall that when we were meeting over the summer, we heard about contaminated PPE or how they purchased one type of PPE but the wrong type shipped. The last I heard.... Here we are, seven or eight months later, and we still haven't gotten our money back. They are still protecting the name of the supplier for commercial reasons. We heard in July that they would announce all the names of their PPE suppliers. We still don't have those.
You brought up the point recently about The New York Times reporting that a large amount of PPE was coming from companies in China that were using forced labour. However, at the same time, our government refuses to release the information on where we're buying our PPE from in China.
In what world does this make sense? We denounce forced labour, but at the same time we won't come clean on where we're buying our PPE from, when the odds are in favour of some of it coming from forced labour.
It's a bit strong to say it, but to me it suggests a little bit of regulatory capture. We have heard this before, governments of all stripes arguing that they have to protect commercial interests, when in fact government is a regulator and is supposed to hold companies to account when there are shortfalls or failings.
There should be no protection for a company that's not fulfilling its contract and that is acting in a way that harms the public interest. It doesn't make sense to me.
Mr. Holman, thanks for your input and for all the work you have done on ATIPs.
Across the country right now, which provinces are doing it well? Who's getting worse? I know that in the federal government we seem to be getting worse. Who's doing it better, and who across the globe in the free world is doing it better?
I don't think any province in Canada right now is actually doing it well when it comes to transparency, because all of these measures, whether or not they're whistle-blowing, or whether or not they're freedom of information, are essentially coming from the same source. They're all relatively the same, so we encounter the same problems as we look at all of the jurisdictions across Canada.
What we should be looking at is how other countries are doing this, and how other countries are doing better. A quick example is New Zealand, which has been elevated internationally for its approach to dealing with the pandemic. One interesting thing that doesn't get as much attention as it should is the fact that it publicly discloses its cabinet records, proactively after 30 business days of final decisions being taken by cabinet. Other countries are more open than we are, and we need to follow the lead of those countries in bringing more openness and accountability to Canada.
If I could just add another thing.... You mentioned China. That's a really interesting example. The Toronto Star did some really good investigative reporting and found that many companies in Canada are actually importing goods that have been manufactured with forced labour. What's interesting is that the reporting was only possible because some of those import/export records are available in the United States. We don't have access to those import records in Canada—
I hate to cut you off, but we're in a time constraint. Perhaps you can add to that answer at another time.
Mr. MacKinnon, you have six minutes.
[Translation]
Thank you, Mr. Chair.
I want to thank the witnesses for joining us today, both in person and virtually.
[English]
I want to speak a bit about what, in fact, this government is disclosing, and what the public knows as a result of many of the disclosures that have occurred during this pandemic.
[Translation]
I'm speaking as Parliamentary Secretary to the Minister of Public Services and Procurement. The Translation Bureau is under our responsibility and is inundated with requests to translate documents destined for the general public.
[English]
The backlog we are currently experiencing at the Translation Bureau to provide public disclosure of COVID and other related documents is an overwhelming one. It's never been seen before. That is precisely because this government has agreed to disclose a number of COVID-related documents and provide extraordinary disclosures.
I do recall, and all members here will recall, the first motion we made to adjourn the House and to adjourn to hybrid sittings. It was one that called upon the Auditor General to do special examinations of the government with respect to COVID-related decisions.
The front page of The Globe and Mail today contains disclosures that are extraordinary and would never have been made outside of a pandemic-related circumstance.
Mr. Holman, you have noted the disclosures by the Canadian Armed Forces of conditions in long-term care homes, which, again, arguably, are extraordinary and would not have been made outside of pandemic-related conditions.
My posit—and I would like the witnesses to react to this—is that this government has gone above and beyond with respect to disclosures during the pandemic.
Many of the arguments are those that surround things like acquisitions and procurements of a sensitive nature. I would posit again to you, before turning the floor and the mike over to all three of you, that we are indeed in global competition for vaccines, vaccine supplies, personal protective equipment, and to disclose many of the terms.... Obviously, we have disclosed some of the terms of these contracts, an important number of them, but to disclose many others of these terms would have, in fact, posed the ethical dilemma of putting actual Canadian lives in danger.
I'll ask you to react to that, Mr. Cutler, Mr. Holman, and then Mr. Bron.
Thank you.
I obviously disagree somewhat with your premise. In terms of information being freely given, I have been dealing with access for many years now, and in the last two or three years, well before the pandemic, the system has ground almost to a halt.
I agree that it is much, much worse since then, because people are not working in their offices and there are delays in getting documents. That is totally understandable. It has to be, at least to some extent, judged as being acceptable. If you will, the delay is unacceptable; the fact that there is a delay is acceptable.
As for the government contracts, I have been dealing with government contracts for many, many years. I know exactly what documents are open and what are not. When you ask for a copy of a contract, certain information that is considered trade confidential is redacted, and that usually includes the actual cost, which is normal. However, a lot of information is not redacted, such as deliveries and who gets the contract, and that has always been considered open and easy to obtain through a request.
Thank you, Mr. Cutler.
I think we'll go to Mr. Bron, if we can.
Unfortunately, we only have about a minute left, so if you both want to speak, you'll have to be quick. Thank you.
For me, it's not so much an exercise in pointing blame at a particular incident; it's a situation that has evolved over many years. The capacity wasn't built up beforehand, and it needs to be built up now.
I'll turn it over to Mr. Holman to answer now.
You point out, Mr. MacKinnon, that the Canadian Army whistle-blowing is an example of transparency. It isn't. That information about long-term care homes only came out because members of the Canadian Armed Forces went to the media.
As my colleague Mr. Bron has pointed out, this situation is exacerbating a lot of the structural problems we have seen build up over years within both the whistle-blowing and freedom of information systems.
[Translation]
Thank you, Mr. Chair.
Mr. Bron, in a crisis, decisions must be made quickly, and it's often necessary to “turn on a dime.”
How does the government's lack of transparency regarding vaccines and other procurement contracts affect our ability to address the issues along the way?
What are the potential implications for the bottom line in terms of the cost of the pandemic to taxpayers?
[English]
The answer, of course, is yes. You'll end up paying more. A lack of transparency allows mistakes or misconduct to slip through. The best way is to have upfront transparency so that the problems can be spotted early. When that fails, you have to fall back on whistle-blowers. Whistle-blowers are a kind of tripwire to pick up wrongdoing. They're supposed to work when other systems fail.
As to how the costs would add up, if you have conspiracy between contractors, for example, that might not be as easy to spot if you don't have appropriate transparency and you don't have somebody looking back at the records.
I think, though, that Mr. Cutler might be a better person to answer the contracting question.
I agree totally that mistakes will happen, and big contracts with higher prices are negotiated when you're in a rush. We all know that. However, with regard to mistakes as to what you're buying and who you're buying it from, there's no way of knowing what's happening except in an audit, years later. Think about two or three years from now. Information as to what went wrong will probably be known, but the people who have already received all the benefits from it have disappeared.
It is not that hard to have checks and balances, but it's systemic systems that have been put into place to protect people from learning the truth early.
I couldn't agree more. This is transparency about good government decision-making. If there is more transparency, if government is aware that it is being watched and if government is aware that people are paying attention, then chances are its decisions will be better. That's really what we're talking about here.
We're talking about democracy, but we're also talking about good government.
[Translation]
Thank you.
Mr. Holman, I have some questions for you.
On June 9, 2020, the Minister of Public Services and Procurement noted in her opening remarks that, as a result of competition and the current market instability, some information about our procurement could compromise federal government orders and Canada's negotiating position.
You spoke about the system of silence. Is the system of private or secret decision-making meant to ensure better service to the public?
Is its goal instead to preserve any potential sensitivities with regard to international partners?
Does it exist to open certain political doors?
[English]
Oftentimes it's to protect secrecy.
As a small historical footnote, when we were talking about making government records available after 30 years, in the post-war period there was discussion in cabinet about this. One principal reason they didn't make it 25 years was that men in public office could still be in public office after 25 years. There was a desire not to embarrass those individuals.
We're really talking about embarrassment here more than anything else. We're not talking about good government. We're not talking about democracy. We're talking about, in a lot of cases, simply the desire to protect public officials from embarrassment.
[Translation]
[English]
[Translation]
Thank you, Mr. Chair.
Mr. Bron, in the past, I've heard people say that we should be careful about whistle-blowing and that whistle-blowing could be a way for a person to get back at an employer or a high-ranking officer.
In your opinion, is this type of whistle-blowing common?
Should the likelihood of this happening hold back the government from improving its system and legislation?
[English]
It doesn't happen very often. It's very rare. It's a straw man that's often erected to argue against whistle-blowing.
If you look at the B.C. Health firings that occurred back in 2012, that showed what happens when you don't have an effective system in place. You have a kangaroo court and people being dragged over the coals—all for nothing.
An effective whistle-blowing system ensures that doesn't happen. If there is a malicious complaint or if somebody is just simply wrong, the system allows for an investigation to identify the problem and the inquiry is shut down.
Thank you, Mr. Bron. I appreciate it.
Maybe you heard my alarm go off there to signal the time. That is not someone's phone; it's my clock going off.
We'll now go to Mr. Green for six minutes.
I have to say that I'm remiss that the recommendations in the first go-around in OGGO weren't adopted. I can only imagine what kind of waste and incidents of possible collusion or corruption could have been avoided if we had systems and principles in place coming into COVID.
I want the opportunity to draw out the recommendations that have been put forward in the white paper. I want to compare and contrast your definition of “open by default” and the government's definition of “open by default”, which it so proudly places in all the mandate letters.
Perhaps, Mr. Holman, you would like to start off with that question.
“Open by default” is a great slogan, isn't it? The fact of the matter is that “open by default” has often translated into “open except for any material that falls within certain exemptions and exclusions”. As you know, the exemptions and exclusions in the Access to Information Act are quite large. They have been large and they have been a problem ever since the Access to Information Act became law. A reporter commented immediately after that law was passed that the loopholes were so big you could fly the Goodyear Blimp between them.
We need to establish a law that requires the proactive disclosure of certain broad categories of public record. Enough with giving government an opportunity to exclude certain things. It's proven that it can't be trusted with that. We need a law that actually forces disclosure and forces proactive disclosure of broad categories of information.
As a former city councillor, I can share with you that this would be one of the things I would try to root out in procurement. We had a heck of a time doing it, particularly as it related to lobbying. I looked at it as a continuum. The contracts are often down the line of the initial engagement, on a continuum.
I believe it was Mr. Bron who talked about upfront transparency and the idea that some of what we learn about in Canada actually comes from American disclosures. You referenced export records. I'm wondering if anybody would like to speak specifically about the extent to which American lobbying records have far outpaced Canada's. I reference some of the issues around SNC-Lavalin and military contracts, things that Canadian lobbyists had to disclose in the States, but our systems seem to completely miss.
I can speak to that.
You're absolutely right. The funny thing is that we got an Access to Information Act in the early 1980s because there was a recognition that in the United States more information was being made available, information that Canadians didn't have. In fact, one of the big moments was the realization that Canadians could get access to information about meat inspection reports at their own meat inspection plants in the United States, but couldn't get access to those same records in Canada.
We need to revisit the amount of comparative information between ourselves and the United States, because it will expose just how secretive our governments in this country are, regardless of their political stripe.
I would tend to agree. There's a certain smugness that we like to have in looking down our noses at America. I think a bit of fauxgressivism happens there in how we're treating this information. When you look at the contracts, for instance—you wouldn't probably have known this, but this was a question that I brought up repeatedly to the minister responsible for procurement, asking them to post the contracts—it is my understanding that it only benefits the seller and not the buyer to have secrecy in these disclosures. Again, we heard from Mr. Cutler the idea of options versus actuals on the vaccines.
Could Mr. Cutler speak a little about the importance of having an open government approach to the actual contracts and ways that it might be able to help us come to a better process? This isn't about vilifying government. This is about having good processes in place that shine the light in dark corners and make sure that government is actually doing what it says it's doing.
Mr. Cutler, could you talk about the importance of seeing the devil in the details of our contract?
Sean mentioned the whole concept of openness by default. I would tend to state that the government, for many years, has been openness by exception, not by default. My premise would be that from a user's viewpoint, a public viewpoint, openness by exception...you can only close it down occasionally.
By the way, what I was talking about is a normal process that is already there. I'm not talking about something new. I want a copy of a contract. I make an access request. I get a copy of the contract. I have seen the contract for Phoenix, for example. It has been given to me by media, which was given it. The only things that were missing were certain redacted portions, but it was enough to tell me a lot of the problems.
Every contract put out under the COVID situation could be published. We then would know who it was, how much money we're spending in total—we don't need the individual figures for a firm, but how much in total—and the details of the contract. All that information is already what is normally given.
Thank you, Mr. Cutler and Mr. Green.
We'll now go to our second round. We'll start with five minutes for Mr. Paul-Hus.
[Translation]
Thank you, Mr. Chair.
Gentlemen, thank you for joining us. Your presentations are very informative.
We've been talking about contracts for the past while. I have a list here from a Government of Canada site. It's in “Table 3: N95 respirators.” Currently, only two companies out of 23 are named. The others are simply referred to as Company A, B, C, D, and so on. The contracts are worth $91 million, $35 million, $69 million and $158 million.
Do you think that it's normal that we don't at least have the names of the companies?
We're told that the issue concerns confidentiality in negotiations. I understand that. However, wouldn't it be normal to have the names of the companies?
I want to hear your thoughts on this, Mr. Cutler.
[English]
I would tell you, yes, it should be a normal thing. Given the urgency, it's totally understandable that the government made decisions as to whom they were going to give it to. There should have been a process to vet them quickly. My understanding is that some of them may not have been in the business at all, but I don't know the details so I'm not going to get into....
As I said, criticism in hindsight is good, but knowing the details and knowing the firms should be standard practice. What you want should just be there.
[Translation]
That's what I think.
In your experience, does the fact that we don't know the names of the companies open the door to collusion? Can there be collusion among different companies? Since we don't have access to them, we don't have the opportunity to form an opinion on the matter.
[English]
Yes, there can be bid rigging. You can't know if you don't know who's bidding. Believe me, the media love to investigate these things. There can be bid rigging, and you can pay more than you should. It's not hard to police.
By the way, it's not always recognized, but the government has the power to impose contracts under exceptional circumstances, and also to make certain that all prices are audited so it doesn't have to be gouged. Again, though, I don't know what was in the contract or how the contract was written.
[Translation]
Thank you.
I now have some questions for you, Mr. Holman.
Last week, we learned that the CanSinoBio contract, the contract awarded by the Government of Canada for vaccine development, had ended. In June, the National Research Council of Canada told a House of Commons committee that the agreement was in place. In July, the Government of Canada said that there was still an agreement in place. In August, we were told that there was no longer an agreement. We're now learning that the Chinese ended the agreement in May.
Do you think that it's normal for the Government of Canada to hide this information?
[English]
I think it's normal, but it shouldn't be happening. The pandemic is exacerbating and illuminating all the existing problems that we see in the transparency system in this country, whether it's whistle-blowing or whether it's treatment of information. We should have a right to that information. We should be able to know.
That's why, again, it's necessary to have a law that forces proactive disclosure of large categories of records, including the kinds of records you're referencing, because then we would know for sure.
[Translation]
Thank you.
As you said, the pandemic exacerbates all situations. Do you think that the pandemic is now being used as an excuse for the government to do whatever it wants, thinking that no one will be monitoring it and no one will see anything?
Don't you think that this excuse shouldn't exist?
[English]
I don't know the mind of government, but this should also be an opportunity for us to bring in more transparency measures. Because these problems are being highlighted and illuminated, it creates an opportunity for everyone in this room to raise these issues with their constituents and in Parliament, and to get some better transparency laws than the ones we have had in the past.
[Translation]
[English]
Perhaps. As I say, we need a large disclosure of records and a law that forces that large disclosure, as well as some of the whistle-blowing recommendations that the COVID-19 Accountability Group is making.
Thank you, Mr. Chair.
Welcome to our witnesses, once again.
Let me start with Mr. Cutler.
You indicated in your opening remarks, as well as in response to a number of questions my colleague raised, that you are very much interested in contracts. You like to see the details. You've reviewed many of the government contracts. That means you're quite familiar with the standard contract the government probably issues. You also said you understand that some of them are shared and some of them are not shared.
Let me start with a fundamental question. Do you believe that the Government of Canada procurement contract is a complete and comprehensive set of building blocks that, if followed, will protect us?
You used the words “if followed”. Yes, the laws and the rules as written are good. They're probably sufficient. This does respect the need in urgent situations such as pandemics, floods and fires to have to react quickly, and what to do and how to do different procurement practices during that. I don't have a problem with that.
You mentioned my procurement. My procurement background is that I did 30 years in the federal public service. I know the process. I know the contracts. I look at them and understand them very quickly. I also understand the documents that should be there, but unless I can see them, I don't know if they are there.
Perfect. Thank you. Let me ask a follow-up question.
Having that much experience, what do you think are the risks associated with sharing some or all of the parts of contracts? Do you believe there is any risk, in any dimension, associated with sharing any of these details of the contracts?
I can make it very simple: No, I don't think there is any risk in sharing the basic information in a contract. That's the normal practice. It's already done—
My apologies for interrupting you. You're not looking for basic information. You're suggesting the detailed information. Can you help me understand what is the difference between the detailed and the basic information?
The detailed information would be regarding how a firm, if they have a product exclusive to them, produced it. But the fact that they have the product.... If I'm buying a million of that product, I should be able to know how much the government is paying for that product. The basic contract gives you a ton of information. It's generally only proprietary information that is redacted, and that is not a large portion, especially not when you're buying a product.
Mr. Cutler, you said that you don't believe there is any risk. How would you explain the fact that as a result of some of our procurement strategies—or some of the procurement that we had done regarding PPE—becoming public, some of the products all of a sudden got redirected or rescheduled? Wouldn't you consider it a risk that when some of that information is made available we may lose the opportunity to be able to secure those products? That actually has an impact on the public safety and health of Canadians.
Thank you.
If you're talking about something during a negotiation, which is pre-contracting, that's a different situation than when you have a contract with definite deliveries and definite everything in it. The danger we have is not whether we have the information. As Sean and Ian have both pointed out, it's a transparency issue. When you cover up, it's like a dark room. Fungus and mushrooms can grow. They don't grow in daylight. If you want to protect things from wrongdoing, you have to be open and transparent.
[Translation]
Thank you, Mr. Chair.
I have some questions for you, Mr. Bron.
The Public Servants Disclosure Protection Act came into force in 2007. In your opinion, is a whistle-blower better treated now than in 2007?
[English]
Do you mean the federal whistle-blowing law from 2007?
Ms. Julie Vignola: Yes.
Mr. Ian Bron: Well, in theory, yes—I mean, there are statutory protections—but in actuality, no, there are just too many loopholes in the law. Most of the law is dedicated to directing whistle-blowers through certain channels and making sure that they can report only certain things—one misstep and it all goes wrong. As Mr. Cutler was saying, the system doesn't really have the trust of employees anymore.
Also, that's just for the public sector. There is nothing for the private sector. In cases like this, where you have contracting with the private sector, you're going to see wrongdoing on both sides of the transaction. The current law doesn't even allow the Integrity Commissioner to go into the private sector to find out the truth.
[Translation]
What could be done to ensure that whistle-blowers are truly protected by this legislation and that they're no longer afraid of losing their jobs or suffering near-disastrous consequences if they blow the whistle?
[English]
I would just direct the committee back to its own report from 2017. There were some excellent recommendations there.
That said, some of the people who gave testimony suggested a complete rewrite of the law to best practices. There are countries out there, such as Ireland and Serbia, that have excellent laws that cover both the public and the private sector.
There are two approaches. You could either go back to the drawing board or start implementing some of the recommendations that OGGO itself made.
[Translation]
Thank you.
Mr. Cutler, the parliamentarians, the public and even the parliamentary budget officer haven't had the opportunity to see any contracts, figures or agreements related to the vaccines.
Do you know whether this type of situation exists in countries other than Canada?
[English]
[Translation]
[English]
Ms. Vignola, I'll let you clarify that question for him, and maybe Mr. Cutler could answer in writing afterwards.
Thank you very much.
We heard from the testimony of Mr. Bron the concept of regulatory capture. It sounded more like corporate capture, in that it's designed to protect the corporate and commercial interest.
Mr. Bron, would you care to elaborate on ways in which, in your opinion, regulatory capture leads to this type of scenario?
What I was referring to is a situation in which the regulator, to use the example of Transport Canada where I worked many years ago, is too friendly to the industry and they start bypassing their own processes, perhaps not being transparent enough or coming to decisions that other people might question.
There's a tendency to favour industry in a number of agencies in government. My own research has picked this up in places such as Health Canada, the Food Inspection Agency—
Of course, there's the case of Shiv Chopra, where he raised the issue of the use of bovine growth hormone and the decision-making process there having been pretty much designed to approve just about anything industry wanted.
Transport Canada had records to do with derailments, for example, that weren't being put out, so the companies looked to be doing a much better job than they actually were. We found out, unfortunately, at Lac-Mégantic just how bad it was.
As Mr. Holman was saying, these records are easily available in the States. Why they shouldn't be available here only serves to protect the company, not the public interest.
It sounds very much like corporate capture to me. I wonder if you have any quick thoughts on one of the ways this could be immediately addressed, or at least directly addressed?
Well, one way is definitely transparency. There's all kinds of data out there that should just be available for people.
The other one is to empower whistle-blowers, both in the agencies such as Health Canada and in the companies being regulated, because that's what these systems are built on. These days, they have something called “safety management systems”. It really relies on companies to bring forward their own errors, but if they're suppressing whistle-blowers, that information never reaches the right people.
Thank you.
Mr. Kitchen, my clock had me at two minutes and 37 seconds, so I cut it short there for you.
Thank you very much, Mr. Green. I actually hadn't started the clock on you, so I was going to give you extra time.
Hello and thanks to all three of you for being here.
I was a journalist for 30 years myself, and I dealt with a lot of issues of public disclosure and VoIP hacks and all of that, so I know intimately the headaches that could come with trying to get information from governments.
Now that I am a member of Parliament, the headaches continue.
Just off the top, I think we can all agree that hindsight is 20/20, and it's obvious that the federal government and provincial governments have made some grave errors in dealing with COVID. It wasn't so long ago that we were told that COVID wasn't a threat to Canada, masks weren't really effective, and stopping international travel wouldn't be effective. So against that backdrop—and that's been in just a year—this is kind of a philosophical question, but how would better disclosure of public information ensure that these kinds of grave missteps are avoided?
Any of you could start. Who wants to jump in?
What we know is that when organizations know they are being watched, they'd behave themselves better. The other interesting thing is that when more information is out there, it allows people outside of government to help the government and to say that it should maybe be looking at this and that maybe it got something wrong. It also allows for better decision-making outside of government.
I think the other thing that we should also be concerned about is just the amount of information available in general, not just secrecy but the amount of information available. What we know is that the government in a lot of circumstances isn't actually collecting as much information as it should, and we should be thinking about that too.
I agree with what he's saying. I really don't have a whole lot to add. It's very important that people be able to make decisions. I think that in providing the information, you're in a sense crowdsourcing error detection. You're allowing people to pick up on problems. That's what whistle-blowers do too. They're embedded in the organization. Nobody else is better positioned to spot the wrongdoing, and they can get that information to the people who can do something about it.
I'm in exactly the same situation. The more people learn about information, the more chance you have to have input into it. Yes, mistakes will happen. Corrections will be faster, but over and above mistakes, corruption and wrongdoing will be avoided because people will be watching, because you're publishing information that they can then learn from.
So let's focus not just on mistakes. It's a broader category that we need, and we need openness and transparency to address it.
Excellent.
Right now, speaking of COVID, Canada is way behind in getting people vaccinated. I know that we've heard from the government that there are lots of vaccinations coming and lots of drugs coming, but when you look at the statistics right now from the Oxford-based Our World in Data, Canada is now ranking 20th globally, well behind our allies like the U.S., United Kingdom, and even some of the middle-income countries like Poland and Serbia.
How would better access to information and improved whistle-blowing legislation solve this kind of great problem?
Anybody could start on that.
I'll make just a quick comment.
It won't solve the problem, but it might have prevented the problem, because we would have known that there was a problem coming and we would have been in a position of needing to address it. It won't solve the problem right this minute.
Yes, absolutely. It allows for public pressure to be brought to bear, whether by elected representatives, civil society groups or individual citizens. Knowledge allows for action. Knowledge allows for decision.
[Translation]
Thank you, my fellow members.
I'm pleased that our witnesses, who often appear before the committee, are here again to speak to us.
I have a question for Mr. Cutler. However, I would also like Mr. Bron and Mr. Holman to share their views.
Mr. Cutler, I'm wondering whether the Public Servants Disclosure Protection Act should apply to the private sector. I don't know whether you have had the chance to conduct a legal analysis of this issue. Does the federal government have the jurisdiction to legislate in the private sector with respect to employment standards and employability, when several of these areas fall under provincial jurisdiction? I'm curious to hear your comments on this issue, because you said that we need national legislation.
[English]
I don't know if Canada can legislate—I haven't gone through a legal situation—but it seems to me that many, many acts affecting Canadians are national acts. I mean, even paying income tax is a national act, though we may not want to. The point is that you'd have to ask that yourself. I'm talking about a need. How that need is addressed legally, I'm not knowledgeable enough to tell you.
Maybe Sean or Ian have done research on that.
Well, Mr. Drouin, you're not wrong that there is a division between provincial and federal spheres of authority, of course. We probably need laws at all levels. It would be nice to have one at the national level that covers procurement and federally regulated businesses like railways and that kind of thing, because that's still a huge portion of the economy and the private sector.
I think that once you have one good law in place, the other provinces will feel the pressure to also put in better laws. In the case of the Public Servants Disclosure Protection Act, which was passed in 2007, that's exactly what happened. Each of the provinces copied what was done at the federal level. Unfortunately, because of this, all the laws are ineffective.
I'll just add that another thing we should also be taking a look at is greater disclosure by corporations. This is actually something that the federal government started to take a look at in 1978 through the Royal Commission on Corporate Concentration. There were some very good recommendations from that royal commission that talked about the need for greater information disclosure, not just from government, but also from these corporations that were getting larger and larger.
I think it's a two-pronged approach: We need more information from the government, but we also need more information from corporations.
Thank you, gentlemen.
I was curious because I know that when certain parties were all contemplating raising the minimum wage, the federal government, it only applied to federally regulated businesses. I figured that if we can only raise the minimum wage in federally regulated businesses, then, obviously, when you create other whistle-blowing acts, it may not apply, but I was curious to hear your opinion.
The other question I have has to do with culture and whether you've been advising organizations on how to create a culture of openness within the system.
I know, Mr. Cutler, that a lot of public servants continue to reach out to you. How do you instill a culture of openness? We can pass all the laws we want, but we know that people break the law, and unfortunately, sometimes you have to go to court to make sure who is right. However, even before we get to that point, have you been advising folks on how to create a culture of openness, making sure that when something is wrong then there can be that discussion with their superiors—unless it's criminal, obviously?
Both Ian and I have been extensively involved with the whistle-blowing community. I have tried—and I'm certain Ian has—to get into the organizations that talked about wanting to create it. I took the time about four or five years ago and wrote to every deputy minister in the federal system. I only heard back from two or three, and all the letters said, “No, we don't have a problem”, so they didn't need to look at it any further.
What happens is that we deal with the whistle-blowers and actually advise them to avoid—I do, anyway, now—the public routes that are usually there, other than to report it if they have to. We try to help them get the message out through brown envelopes or whatever other means are needed. To do that, we also have to check that it's valid and not just malicious. However, there are so few malicious ones that it's not a hard thing to check.
Ian, you must have comments on it.
Thank you, Mr. Cutler.
Mr. Bron, it's a great question, and if you have anything you think you could add, you could provide that for us in writing, just because of time constraints. I appreciate that.
Thank you, Mr. Drouin.
We will now go to the next round. We'll go to Mr. McCauley for six minutes.
I think culture is one of the hardest things to change, especially because the people who are controlling the culture are the ones at the top who have been there for decades. They have been socialized in this way of doing things. So I think getting leadership to buy in is absolutely essential. You have to have leadership who will not only talk the talk, but walk the walk and send a strong signal.
I also am a fervent believer that once you have the rules in place, you have to enforce them. I'm coming to believe that culture follows enforcement. It's a bit like seat belts. There was a time when nobody wore seat belts. Then it was against the law, and eventually people conformed.
Let me follow up on that, then. How do we make our ATIP laws with more teeth? I know Bill C-58, in the 42nd Parliament.... We actually looked at it in this committee. It took us a step backward. We've heard, for example, DND hiding items from ATIP that involved Admiral Norman. We've heard the Information Commissioner just put the current government over the rails about the RCMP not providing information in a timely fashion.
What do we have to put in to actually bring in this change of culture that is perhaps pushed by the regulations?
For me, the short answer is consequences. There has to be personal accountability. If an official is hiding information from the public, then there need to be consequences for that official.
Who has the best laws out there? You mentioned Ireland and Serbia. Do they actually have consequences built into their whistle-blower...and perhaps on ATIP? Who has the best ATIP laws out there that we could look at?
I'm not an expert on ATIP laws, but I could tell you for whistle-blowing laws definitely there are consequences. One of the consequences is that the company, if they are taking an action against a whistle-blower, essentially has to continue paying that whistle-blower's salary for as long as they want to. So there's a financial cost for them there, and there's also in some countries a criminal sanction.
Criminal sanctions are harder to prove, because you have a higher standard of proof, so you might want to go with something like administrative monetary penalties or something like that.
Or perhaps ban them from getting government contracts, like SNC-Lavalin, and then do circuits around that.
I want to follow up on that bit about companies. We heard when we were doing the whistle-blower review that contractors have to be protected as well. We do not have that in Canada; we should. Who out there is protecting the employees levels down...? So they'll send out a contract to a large company that subcontracts. How do we get the protection in for those companies that aren't covered by our current act?
There aren't any jurisdictions in Canada that go much farther than contractors who are actually working on the premises of government, basically. Everything else is not protected.
You basically have to extend the laws on it so that if there's wrongdoing that affects the public sector, the Integrity Commissioner could follow it to the private sector. That's one issue. But then you also have to have a law that protects people in the private sector, and that's why we're advocating for something that covers both.
I think that's definitely necessary.
Mr. Holman, I just want to switch over to you. We've seen a massive delay in our ATIPs in Canada. How much is it due to COVID being a valid reason? It's been a year now. On ATIP I've been getting letters back saying it's four years to get simple emails from five people over a one-month period. How much is COVID a valid excuse? How much is the culture trying to withhold information from MPs or the public?
Clearly, the pandemic is affecting it in terms of the ability of the public service to actually access records and do their work easily, but we were seeing these kinds of delays even before the pandemic.
I think it's a bit of both, but it sort of highlights a structural issue that has existed for a very long time. We do need to normalize greater openness in government—greater openness than we currently have.
It almost sounds like all three of you are suggesting building back better for information access, as we're coming out of the COVID pandemic. Perhaps my counterparts across the way should use that slogan, “build back better”, to include openness and transparency as well.
I would also include one other thing. You asked about what other measures can be done to encourage whistle-blowing and openness. I would also take a look at the secrecy oaths that we have in the public service. If you start off employment by saying everything's confidential, you're not going to get much openness.
I would also take a look at the growth of the public relations state. We have a whole mechanism of communications now that interferes with the ability of the public, journalists and opposition members to actually communicate with line bureaucrats. I would be taking a look at dismantling that public relations state and actually allowing line bureaucrats to once again communicate with the people who, frankly, are paying their salaries.
You know, that's a great comment. I remember a while ago a stream of 22 emails to send one tweet from Environment. It's a great point.
Thank you, Mr. McCauley.
Thank you, Mr. Holman.
We are now going to go to Mr. Kusmierczyk.
Mr. Kusmierczyk, I like your background behind you. I don't want to show my age, but I do like it.
You have the floor, Mr. Kusmierczyk.
Thank you very much, Mr. Chair. I'll make sure to convey those kind words.
This is really just an open question. I have really enjoyed this conversation we're having. I think some important questions have been raised, and some important points of discussion.
Transparency International is a leading organization that's tackling corruption. Last week, it released its corruption perceptions index, or CPI, which measures perceptions of public sector corruption in about 180 countries. Canada placed 11th, alongside the U.K. and Australia. They actually have the best transparency score in the Americas. As an example, by comparison the United States came in 25th. There's always room to improve and, no doubt, to do better.
Again, this is an open question. We discussed some of the shortcomings today, but what underpins Canada's performance on this index?
Maybe I'll go fist.
I'm a member of Transparency International, as it happens. You're right that we're now 11th, but you didn't address that it's a drop from where we were traditionally. We were traditionally, for years, in the top 10. We have dropped out of the top 10 now.
A good part of what is not done in Transparency International is.... It's a perception index. For whatever reason, in Canada, we perceive white-collar crime as misdemeanours. We really don't take the corruption seriously. Consequently, we're higher up in the index than we probably should be, and many people who are in Transparency International would tell you that. They've told me that.
We quite literally don't know what we don't know. If people knew more about what was actually going on in government, maybe we would find that the transparency rating is overrated.
Again, to Mr. Cutler's point, it's perception, not actuality.
There's an organization called Global Integrity that, years ago, used to do its own assessments of a similar nature. They didn't just look at perceptions. They looked at whether there were laws to cover certain acts of corruption and whether these laws were properly enforced. Canada always did very well on having the laws, and not so well on enforcing them.
Again, maybe this is a question for Mr. Cutler. What are some other means that governments can use to cultivate “speak up” culture? We know, for example, that the Ontario Securities Commission uses compensation, for example, monetary rewards. Can you maybe talk about what other means governments can use to cultivate “speak up” culture?
One of the things used down in the U.S. is literally rewarding whistle-blowers. That's the Securities and Exchange Commission. One of the other two may want to talk about it a bit more, but it certainly has proven effective.
In Canada, we passed a law that said that if you reported anything to Canada Revenue, you could get up to 15%, but then they put a caveat into the law that said a person who has a criminal record can't get that 15%.
Mr. Bron and I are aware of a particular individual who has tons of knowledge, but because he was convicted in the States, he can't get that percentage to expose the crime in Canada. He actually says that if he crosses the border, they'd find a reason to arrest him. That shows you his belief in how the Canadian justice system works.
I would add that when you're talking about rewards, you're often talking about financial crimes, and the amounts are very large. They overcome the fact that the person who blows the whistle in those situations is basically going to be unemployable in that industry, forever, after that.
However, if you're talking about government, it's a little harder. Offering somebody a little bit of money to fix problems might work in some circumstances, but it wouldn't work in all. I think we have to be thinking more about how to remove the stigma of speaking up inside the public service.
There's a real problem where, even to this day, there are misconceptions about what whistle-blowers' motives are and what they're blowing the whistle about—personal grievances and that sort of thing. That has to come from the top. If you treat the whistle-blower as somebody who is trying to help the organization instead of attacking it, I think you'd see a real sea change in the attitudes and the culture as well.
That's interesting. I appreciate that.
I just have a question and I'm not sure if it was already touched upon in our discussions. Are the concerns you've highlighted and brought forward today similar to the concerns of provincial governments? Are we seeing this across municipal, provincial and federal governments in terms of the “speak up” culture or in terms of the lack of protections?
Absolutely. I've been analyzing all the laws across this country. They are all essentially identical. The loopholes are the same. They're sometimes better and sometimes worse, but basically it's the same problem across the country.
[Translation]
Thank you, Mr. Chair.
Mr. Bron, you have spoken a few times about how whistle-blowers in both the public and private sectors are afraid to reveal an unacceptable situation. When I think of the fear that holds back whistle-blowers and the sometimes major consequences for the individuals who come forward, I get the impression that these people feel intimidated and even harassed.
To protect these employees, is it necessary to strengthen the Public Servants Disclosure Protection Act by building on workplace harassment legislation?
[English]
That's a tricky question. Harassment is usually treated as a personal-level issue. It's usually treated through different channels. Harassment is a typical response to whistle-blowing. It's probably the most pernicious, because it's really hard to prove that somebody is harassing somebody else and that it's related to the whistle-blowing.
Harassment would be considered a form of reprisal and should be treated differently from.... I don't want to call it “garden variety” but that's kind of what I'm getting at. The people who control the harassment procedures are often implicated in the wrongdoing where the harassment is being used as a reprisal. Does that make sense?
Harassment is a standard reprisal technique. If you want a fair hearing on normal harassment, you can go through the normal processes to get it addressed. However, if the harassment is a response to whistle-blowing, often the leadership in the organization will be implicated. They are also controlling the harassment process, so they can derail it. It's a tricky problem.
I get where you're going with it, but that would have to be handled very carefully.
[Translation]
I was simply trying to find ways to improve the act, in addition to the 2015 recommendations.
On November 4, the president of the Treasury Board Secretariat told our committee that the Government of Canada's InfoBase contains all the detailed financial information on COVID-19.
Mr. Holman, what do you think of this statement? Is all the information there? If not, what information is missing and what information should be there?
[English]
If all the information is there, I certainly haven't had time to look at it all. What we know is that that's not the case. This goes to my earlier point. There's a whole bunch of information out there that government not only does not release, but also fails to collect. What we see time and time again from the federal government, and also provincial governments, is that in a variety of areas—not just COVID, but also in anything that government regulates and touches—we are simply not collecting the amount of information necessary to make good decisions.
It has gotten to the point where we often rely—and I'm thinking about health information here related to the pandemic—on other organizations to provide that information to us, because we simply don't have public servants who are doing that collection work.
I think what has happened in Canada is that we've gotten lazy when it comes to collecting the information that's necessary for good decision-making. What we need to do as a country is revisit that data collection process and really put in place some measures that require not just the federal government, but all levels of government, to collect better data than they do.
[Translation]
Thank you.
My question is for all three witnesses, because you may be aware of some information that we don't have.
Do you know whether any whistle-blowers have come forward during the pandemic with regard to contracts, measures, and so on? If so, how did this whistle-blowing affect them?
[English]
I'm aware of several cases. In a couple of the cases, after speaking, they didn't want to go public. They were too afraid that the consequences would be the loss of jobs, and in one case, that the entire firm they were working for might have to shut down.
Mr. Cutler probably has more.
Essentially it's the same. They do not want to speak out because of the consequences, and they see really heavy, negative consequences. Especially now, what happens if they lose their jobs? A lot of them, let's be blunt, have a family, young children, a mortgage. It's a leap of a lot of courage to step forward when they're risking everything, when their kids can't go to university because they can't afford it because they got fired. They have a lot of things to think about, especially now, and it's not getting better.
It's the culture. Everybody says they believe in whistle-blowing, until it affects their organization, and then they're like, “How do we shut them up?”
Thank you.
To the Canadian COVID-19 Accountability Group, in your white paper.... Has the federal government responded to any of your recommendations?
I'm a new MP, and I'm looking back at the report that came out of this committee, “Strengthening the Protection of the Public Interest Within the Public Servants Disclosure Protection Act”, a very fulsome document. I wonder, through you, Mr. Chair, to members present, if they would care to comment on whether or not they view that it might be within our committee's best interest to revisit our own committee's work and find an avenue, perhaps, to restate the recommendations coming out of this, and whether this would be a useful thing.
I'm asking the witnesses. I'm wondering if they're seeing value in the past reports that this committee has done that were passed and then completely shelved by this government. I'm trying not to get agitated because, Mr. Chair, I'll share with you that in my own approach to try to get information out of this government during COVID...you'll recall the many filibusters we sat through in this room.
While I respect my political friends across the aisle in government, and I respect their ability to manoeuvre, I think it's incumbent upon us, particularly in this committee, given that we've gone around this issue before, that we look at reintroducing the findings of our past study and call on this government to take the recommendations not just of the white paper but of the work we've already done in this committee.
Maybe, Mr. Chair, through you to our clerk, are there any avenues within this committee to reintroduce the 2017 report on the Public Servants Disclosure Protection Act?
Thank you, Mr. Chair.
The committee does have the option of readopting the report from 2017 and putting it back into the House. It could ask at that point for a government response if it wants. Alternatively, the committee could start a new study, hear from new witnesses, bring forward the testimony and the report from the previous session and create a new report as well. There are—
Can I suggest through you, Mr. Chair, given the urgency that we have, that at the appropriate time we move to resubmit this study as a whole? It draws on it, but more specifically, in future meetings, we look at the best practices for all the issues that have been brought up here in these testimonies today.
Mr. Chair, through you in my remaining time here, I'm wondering what they would see as being the quickest, most efficient way to introduce the ombudsperson and what exactly that position would be, for the welfare of people tuning in, to be able to provide immediate oversight of COVID spending.
We can throw it to Mr. Holman or Mr. Bron.
That's fair enough.
Mr. Bron, in your opinion, how can we adopt your recommendation for an ombudsman? What would that look like, and how would that affect the positive outcomes on a COVID response moving forward?
We looked at a couple of approaches. One was to take an existing office and expand its mandate to serve as a nerve centre, and the other was to create something fresh that would be a stand-alone. You'd pick somebody who had competence in the field and who would lead it. The ombudsperson that we envisioned was a bit of an interim step, because one of the problems that face whistle-blowers across Canada—not just in the federal government but in the provinces—is that they don't know where to go. That's why the Ontario health ombudsman has been bombarded with complaints that are outside his jurisdiction.
If you set up an office like that, you'd find somebody who has experience in the field, and then you'd have to give them staff, and then you'd also have to publicize its existence. The role of that ombudsperson or ombudsman would be to direct people in the right direction, to give them advice. Quite often also, whistle-blowers don't know what facts they need to support them. You'd need personnel who are familiar with the concepts, and—
It seems to be the case that this is an obvious thing to do, although there may be some examples where this position has also been politicized. But would it also be your opinion that we would need the corresponding legislation to enforce recommendations? As we've seen even with our own committee, we provide findings that are completely disregarded by government, so how would we have that accountability measure in place for an ombudsman to be able to pursue that? If I recall, “ombudsman” is a gender-neutral term and not a gendered term.
You're absolutely right about the gender-neutral term, but there's still some sensitivity about its use.
I'm skeptical about government's ability to pass laws on a dime that would immediately be in force. It can be done, I think, and they certainly did it with the CERB and the employment supplements. Yes, it would have to have some teeth in it, I think, particularly in the longer term, but there's no reason the office couldn't be set up immediately just to provide guidance.
I like it.
In summary, if this government were committed to being open by default, it's your opinion that they most certainly could.
[Translation]
Thank you, Mr. Chair.
In one of my earlier questions, I said that Senator Claude Carignan would introduce a bill tomorrow or this week to strengthen the 2007 whistle-blower legislation. I hope that this bill will be welcomed by the government.
Gentlemen, after hearing from you since the start of this meeting, I sense that there are a lot of transparency and even corruption issues. “Corruption” sounds like a heavy word, but it isn't that complicated to engage in corruption.
Mr. Cutler, you and other witnesses spoke about alternative approaches pending legislation that will help whistle-blowers. The government's current internal mechanisms aren't effective. Apart from the normal process, what are the other ways to help whistle-blowers right now?
[English]
This becomes a difficult one to answer. I'm certain Mr. Bron and Mr. Holman can address it too.
How do you develop trust? Trust is the key core of a whistle-blowing situation, and they're not going to come forward if they don't trust you. They don't trust the present Integrity Commissioner. There's a lack of trust, but there are a few individuals out there, such as Mr. Bron, Mr. Holman and myself, whom they do trust because we keep things quiet, and we've been dealing with them for years.
The only way I can see forward is getting somebody neutral, with a reputation for being neutral, into the centre, and saying, “There's where you go,” which is what Mr. Bron, I think, was mentioning about setting up a separate organization.
Maybe he has a better idea, but I don't perceive any other way to go if you want to get people to speak out.
[Translation]
Thank you, Mr. Cutler.
Mr. Bron, you said that dozens of officials had contacted you, but that they didn't want to be publicly known.
Could you provide some examples of situations reported to you by people who witnessed them?
[English]
It hasn't been dozens; it's been a few. One thing that's been remarkable about this is how few people have actually spoken up.
I'm not sure it's entirely fair to blame the public service for the problems. I think that in many cases the people are over-tasked and are doing the best that they can. However, where there is wrongdoing, people are much too afraid to go public, and in some cases, the details of the case will give away where they are and what they're talking about—for example, the employment subsidy.
[Translation]
Last week, the parliamentary budget officer told us that it was difficult to obtain information from the Department of Innovation, Science and Economic Development.
Are any specific departments more likely to have issues in this area when it comes to managing COVID-19?
[English]
Universally, most of the ministries, most of the departments in government do have these kinds of problems. It's not necessarily exclusive to one department or another. What we see in the statistics, when it comes to access to information in this country, is that all of them—all of them, without exception—are dealing with transparency problems and a lack of transparency.
This is simply because, as my colleagues have said, of the kind of culture of secrecy that has been built up in government, not just under this administration but in every single administration in this country.
[Translation]
[English]
I could add that the Privacy Commissioner used to give ratings—didn't they, Mr. Holman?—of A, B, C and D.
Yes, the Information Commissioner did, and we've seen.... You can check Info Source. It includes those statistics on a department-by-department basis. Some are worse than others. We see, for example, significant problems in Immigration. The Department of Immigration has enormous numbers of requests, and also enormous problems with transparency, probably associated with the volume of requests.
Thank you, Mr. Chair.
Thanks to the witnesses for joining us today for one of our meetings.
I want to pick up on some of the discussion on whistle-blowing that's been under way here. We have a criminal law offence for employers who take action against employees for disclosing information to law enforcement. For all the witnesses, but particularly Mr. Bron and Mr. Cutler, do you think there should also be an offence for employers who take action against employees who make disclosures to third parties, like the media?
I do, yes. The criminal bar is a little harder to reach, if you're trying to prove, but definitely it should be an offence, I would think.
Yes, the other thing, which we haven't mentioned often enough, is the need in the law to have the reverse onus, which basically says that if employers try to retaliate, they have to prove they have not retaliated. The whistle-blower needs protection from retaliation, and if you make the organization responsible for proving it did not do it, the whistle-blowers will feel much safer coming forward.
That's not just criminal. Keep in mind that, while we're talking about COVID, we also have environmental concerns; we have a lot of concerns out there that are not just financial. There's no protection.
I would also add that the Criminal Code provision has never been used. It's completely ineffective. This is not surprising, because it's just a law that says it's an offence. It doesn't say anything about protection or a duty of the employer. It's basically hollow; it's just a line in the Criminal Code.
It was brought up earlier by my colleague that the OSC has whistle-blowing protection and incentives. The AMF has the same thing. The SEC, which was mentioned before, has pretty hefty incentives for whistle-blowing.
In your opinion, is this a requirement for having an effective whistle-blowing program?
No, I don't think it's necessary. It's helpful in circumstances where there are large amounts of money involved, for example. There's research out there suggesting that small incentives actually discourage whistle-blowing, so it's not always appropriate. It's more about protection and valuing the employees who speak up in cases where, for example, there wouldn't be a huge payout in the financial sector.
To many, whistle-blowing does carry along with it a stigma, and people don't want to be considered a snitch or to be seen as working against their fellow employees. You're a team. We all know that this contributes to some of the challenges we see today in environmental violations, as you mentioned.
To all three witnesses, do you have any suggestions about what the federal government could do to change the culture and the perception of whistle-blowing?
I think the first thing you have to do is to have the political levels acknowledge that whistle-blowers are a value and not an impediment to the process. As soon as something happens—the senior bureaucrats are really good at this, by the way, and we could give you examples—they spin the situation. It goes to the politicians. The politicians immediately are saying it's the fault of so and so, or blaming each other's parties.
Phoenix, for example, was a bureaucratic bungle, totally, but they have managed to get the two political parties fighting with each other over it. It's a bureaucratic mess that they created themselves.
How do you correct that? You have to have people who will say, “Come forward. We honour you coming forward.” Maybe it's a special award for the whistle-blower of the year in the federal service, honouring that individual, something that really highlights how important it is and how you value people.
Thank you, Mr. Cutler.
If either of the other witnesses has something they think they might add, if you would put it in writing and send it to the committee clerk, that would be appreciated.
Thank you, Mr. Weiler.
We will now go to Ms. Vignola for two and a half minutes.
[Translation]
Thank you, Mr. Chair.
Mr. Cutler, Mr. Bron and Mr. Holman, you all said, at some point, that people were afraid, that they didn't trust the commissioner and that they were more likely to turn to you.
Would one solution involve having a body at arm's length from the government be responsible for collecting evidence from whistle-blowers and taking steps on their behalf while protecting their identities in both the public and private sectors?
[English]
I will speak first. I won't go into details, but I will say that's exactly what the Integrity Commissioner is supposed to be. Please note that I said “supposed to”.
Absolutely. That is indeed what the commissioner is supposed to do: keep confidentiality. Of course, there's nothing for the private sector right now at all, so adding that would be extremely helpful.
People need to see results. It's not about just having a system that works invisibly in the background; they need to know that it's going to be effective. If they don't see that, they are not going to trust it.
Exactly.
Right now, in a lot of ways the public service is trapped in a spiral of silence. People don't speak up because other people don't speak up, so the spiral of silence continues. We get this secrecy in the federal government around wrongdoing. It really should be everyone's business, including the public's.
[Translation]
In short, people don't trust the commissioner because they don't believe that the system is efficient. Is that right?
[English]
I would agree.
How many years has this law been in place? It has been in place for 14 years now, and the number of cases that have been found to be founded and that have justified disclosures is so low that if you're a person who is working in the public service, you might validly ask, why bother?
Yes. We're just finishing up. We have two more questioners.
We will go with Mr. Diotte, followed by Mr. Drouin.
Mr. Diotte.
Thanks very much for the great testimony from the witnesses. It's really, really useful. You folks are real pros in all of this.
Give us all your one or two best points. If we could wave a magic wand right now, what could we do to fix this situation so that the federal government is more transparent?
I'd like a brief comment from each one of you, please.
From the whistle-blowing perspective, I think we need to go back to the drawing board for the whistle-blowing law. We need to extend it to the private sector, and it needs to meet best practices. There are best practices out there. In the EU, there's the government accountability project. You can copy model laws out of, let's say, Ireland or Serbia, as I was saying earlier. Go back to the beginning and start from scratch.
I'll support what Ian is saying, to go back and start from scratch.
What I will state is, at least at the federal level, to extend it out to every federal agency that's out there, which would include a huge number. Then also, within the federal purview, it could be extended to any firm with a federal contract, under the federal contract. That alone would cover so many people.
To pick up on my colleagues' points, I think we also need to legally mandate the release of broad categories of public records to get it out of the access to information system and simply put it in the public domain.
Another thing is that a lot of these changes shouldn't require enormous amounts of time. Everything that my colleagues have been talking about, that I've been talking about, has been talked about many times before. With regard to Mr. Green's point earlier, we shouldn't need a protracted process to bring in these reforms. We should just be able to do them. There's enough information out there to know what best practice is and what best practice isn't.
Thanks very much, gentlemen. You really are doing a great service to the public. Keep up the good work. Thanks.
Yes, I have a few with regard to the ombudsperson we've discussed.
I think, Mr. Bron, you brought this up. I'm getting a sense that you.... I'm known from previous testimonies, from the groups of threes, that I call for transparency, but the Integrity Commissioner's office is simply not working out for the current whistle-blowers. I'm curious to find out how the ombudsperson would be different from the Integrity Commissioner's office.
For now, it would be more of an advisory role, to help people coming forward. The classic ombudsman role is not necessarily to assign accountability; it's to help resolve disputes, to get to the bottom of matters and to facilitate the correction of problems.
In order to have the kinds of powers that the Integrity Commissioner has, you'd have to develop a law that would extend to both the public and the private sectors.
Mr. Cutler, in terms of those who have come to you and essentially disclosed issues they thought would be whistle-blowing, I'm curious to find out if you are coaching them in terms of offering advice on how to document and gather evidence in order to build that case so that we can find the culprits within the system.
We always give them the advice. However, I have to be clear: The decision of how to use that advice is theirs. We're always clear on that because a lot of them will not go forward.
We've had some clear cases where proof has been brought to us of wrongdoing—and I mean proof in our hands—but we can't go forward because it would expose the whistle-blower. We will never damage the person who is bringing us the wrongdoing. We won't take that risk.
Thank you very much, Mr. Drouin.
With that, I would like to thank all three witnesses, Mr. Bron, Mr. Cutler and Mr. Holman, for being with us today and for bearing with us because of the votes we had that delayed us a little bit. We do appreciate your sticking with us for this length of time.
I would also like to thank the interpreter and the technicians, as well as the analysts and the clerk, for bearing with us as we went through that.
That being said, I see that my clock reads 5:07, and I said we started at 3:08, which means we are one minute ahead of time.
Thank you very much, everybody, for being with us.
I call this meeting adjourned.
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