Thank you, Mr. Chairman. It's a great pleasure to present to the committee, and a great honour as well. I'm more than happy to assist the committee in its deliberations around reform of Canadian whistle-blower protections. I'll talk to you briefly about how the Protected Disclosures Act in Ireland came about and about key features of the act and some of our observations around potential impacts of the legislation here in Ireland.
By way of background, I'm chief executive of Transparency International in Ireland. We have been working on whistle-blower protection for about 10 years now. We launched Ireland's first and only free phone helpline for whistle-blowers in 2011, and we have assisted around 900 people so far. We also assisted the Irish government in drafting the Protected Disclosures Act in 2014. We provide advice to the Council of Europe, the United Nations Office on Drugs and Crime, and other agencies, and we have been offering assistance to other governments in their deliberations around whistle-blower protection.
We started exploring this issue in some depth back in 2009, and we published an assessment of legislation in Ireland. Up until 2014 there were around 18 pieces of legislation on the statute books governing how individuals should report a concern and the kinds of protections they would be afforded were they to make a disclosure. We found that whistle-blowers were afforded varying degrees of protections, depending on where they worked and the type of wrongdoing they were reporting. One could report a breach of the Pensions Act or the Chemicals Act or the Communications Regulation Act, but up until 2013, if you worked in a bank you weren't afforded the opportunity to report or to report with the knowledge that if you did suffer reprisal, informal or formal, you would have any rights to seek redress.
It wasn't really until the collapse of the Irish banking sector in 2008 that the Irish government took the issue of whistle-blowing seriously. Transparency International had been campaigning for some time. In 2010 we published a report, which led to a degree of consensus across party lines on the need for stronger whistle-blower protection. We had been campaigning for a piece of legislation similar to that which has been on the statute books in the United Kingdom since 1999, which would afford whistle-blowers protection irrespective of the type of wrongdoing they were reporting or where they worked. We campaigned for what became the Protected Disclosures Act in 2014.
The act draws from best practices in the United Kingdom, New Zealand, South Africa, and elsewhere. It focuses on workplace whistle-blowing. It applies to all sectors of the economy. It protects anyone so long as they have a reason to believe what they are reporting is true. False disclosures are not protected, or shall I say, false disclosures in which the individual is found to have known they were false are not protected. Someone can avail themselves of the protections so long as they can show that they had a reason to believe what they were reporting was true, even if it transpires that the information they shared was misleading or false.
Past disclosures are also protected, so any disclosures of information related to wrongdoing made prior to 2014 are protected. One unique feature of this legislation is the fact that it was the first to remove the requirement to demonstrate good faith, so the motivation of a whistle-blower is irrelevant.
There is, furthermore, no public interest tests in the legislation. All one has to do is show that one had reason to believe that the type of wrongdoing that is categorized in the legislation was taking place or was likely to be taking place.
All workers are protected, with the exception of volunteers, which is something we would like to see addressed in a forthcoming review of the legislation here. Contractors, agency workers and trainees, and interns working in hospitals are protected. All one has to do is also show that the information one is sharing is relevant. Relevant information is defined clearly in the legislation, and it's related to a type of wrongdoing described in the law.
The information also has to be information that has come to the whistle-blower or the worker in connection with their employment. Again, so long as they have a reason to believe that the information is true, they are protected.
The type of wrongdoing covered is similar to the wrongdoing categorized in the Public Interest Disclosure Act in the United Kingdom. It includes offences; breaches of legal obligation; miscarriage of justice; health and safety issues; damage to the environment; unlawful or improper use of public body funds; oppression, discrimination, or gross negligence by a public body; and concealment of information in relation to any of the types of wrongdoing above.
Workers are protected from unfair dismissal and penalization. That might include bullying. It might include relocation, informal sanctions, ostracization at work. There is a burden placed on the employer to prevent a worker from being bullied or from suffering any harm or detriment arising from a protected disclosure.
Also, uniquely, the Irish legislation provides the right of tort, so an individual can seek redress through the courts where they believe they have suffered harm as a consequence of making a protected disclosure. In addition, an individual has a right to take action against anyone who causes them harm where a disclosure or a protected disclosure has been made by somebody else, such as a family member or a colleague, and they themselves suffer as a consequence of that disclosure. For example, they might be suspected of having made a protected disclosure, but although they were not the person who made the disclosure, they suffer nonetheless. Whistle-blowers are also granted civil and criminal immunity for making a protected disclosure, and their identity is protected from being released without just cause.
Also, the law provides for interim relief for whistle-blowers. Within 21 days of receiving notice that they might be dismissed and they believe their dismissal is a direct consequence of having made a protected disclosure, they can seek redress through the lower courts. The lower courts can prevent their employer from dismissing them and can instruct the employer to reinstate them and keep them on the payroll until such time as their case has been brought before the employment courts, the workplace rights commission.
Employers have an obligation not to dismiss people making protected disclosures, not to penalize or harm them or allow others to do so. Again, they have an obligation to protect the identity of whistle-blowers. They also cannot contract out of their obligations, so they cannot write guiding clauses into contracts or post-employment agreements into settlements. Public employers must have protections or procedures in place. Each public body has to have policy and procedures in place, and must also report to the relevant government departments on the number of cases brought to their attention and the actions taken.
In addition, a whistle-blower can report to their own employer; to the relevant minister, if they're working within the public body; or to a legal adviser. All they have to do in such cases is show they have a reason to believe wrongdoing is taking place. If they have confidence that their employer is taking or will take their concern seriously or they have reason to believe that the information they're disclosing is substantially true, there's substance to their allegations, they can report to the prescribed body, which is generally speaking a regulator responsible for a particular body.
If in the event that they don't have confidence in their employer or the prescribed body, they believe their concern might lead to reprisal, where they can show that they're not personally benefiting or profiting from the disclosure, and other circumstances or conditions are met for the concerns being raised, and it's believed to be reasonable in all circumstances, they can report to a journalist or a member of Parliament.
Thank you very much, Mr. Chairman.
It's an honour to be participating today. Whistle-blower protection is really riding the wave of a global legal revolution. Thirty-five nations and six intergovernmental organizations, including the UN, the OAS, and the World Bank now have whistle-blower protection policies. In 1989 there was only one, the United States. GAP has had to draft or enact 33 U.S. or global whistle-blower policies or laws helping 8,000 whistle-blowers since 1977, so we're speaking from a base of experience.
Our primary lesson learned is that weak rights are counterproductive. They increase the chilling effect and associated secrecy when the rights on paper do not reflect reality in practice. As a result, organizations like the Council of Europe, the Organisation for Economic Co-operation and Development, and groups like ours have developed best practices that distinguish effective whistler-blower laws, which are nicknamed “metal shields”, from ineffective laws or “cardboard shields”. If you go into battle with a metal shield, it's dangerous but you have a fighting chance to survive. If you go into battle with a cardboard shield, you're going to die.
Unfortunately, Canada's law is a paper shield, the global lowest common denominator. Its rights are not even in the same league as those of African nations like Zambia or Ghana or former communist nations like Serbia. Using 20 evaluation consensus criteria, the act only passes one and a half, or has about a 15% score. Let's consider why.
The first criteria is the context for free expression rights with no loopholes. Arbitrary loopholes that are based on formality, context, time, and audience dilute the law's potential for accountability. They are stopping up the free flow of information for accountability, and they also create confusion and uncertainty when it's safe to speak out, which causes an associated chilling effect. This law does not protect disclosures to co-workers, which are necessary for the homework to make responsible disclosures, to law enforcement, to Parliament, to the public, or to the media, except in token circumstances.
The second criteria that I consider—and I consider a dozen of the 20 that are most fundamental—is subject matter for free speech rights with no loopholes. It's a given that the whistle-blower law must be protecting disclosures of any misconduct that betrays the public trust. The act does not cover the catch-all category for whistle-blower laws or any anti-corruption laws, or abuse of authority that betrays the public, although it may not be technically illegal. It does not even cover Treasury Board regulations that are significant for procurement.
A third criteria is protection against spillover retaliation. It takes a village of supporting witnesses, expert second opinions, and peer review for an effective, responsible whistle-blowing disclosure. This law does not protect those who assist or who are associated with, and are mistakenly perceived to be whistle-blowers.
Let's go to some criteria very significant for infrastructure. One of those is shielding whistle-blowers from gag orders. Any effective law must override, cancel out, any prior or future rules that contradict or override its free speech rights. They can only be modified by amending the whistle-blower law itself, but this law only protects against parliamentary restraints. Agency gag orders can cancel the national statutes through internal controls. Settlement gag orders are free to lack in secrecy that conceals illegality of public health and safety threats, which is unacceptable for a transparency law.
Let's go to the heart of this act, which is essential support services for paper rights through providing relief through informal investigations, in this case, the PSIC. This is very important so that there's a legitimate channel for closure as an alternative to due process proceedings that many unemployed whistle-blowers can't afford.
But in this act, with the PSIC and its commissioner, whistle-blowers have a toothless investigative agency that cannot even demand evidence of retaliation, that has a blank cheque not to “deal with” complainants' cases or their rights, that has immunity for its actions, and that operates in total secrecy. This is to enforce a transparency law.
Let's go to the next criterion, the right to a genuine day in court. That's the foundation for any credible legal right: the due process right to present evidence and confront accusers in courts reserved for society's highest-stakes issues. This is a whistle-blower law. Under this law, there is no right to any day in court. The PSIC commissioner has to file the lawsuits for the commissioners and hasn't argued a case in court for over a decade.
There shouldn't be any confusion. The lack of due process is the primary reason this act is not legitimate. The rights in the law will not be credible until whistle-blowers have the due process right to defend themselves. In fact, the law even cut out previously available court access, making itself the exclusive remedy.
The final criterion for an effective infrastructure is realistic legal standards to prove violations of rights. These are among the law's most significant features. They set the merits rules of the game for how much evidence is needed to deserve protection and for how much is necessary for each side to win.
On the merits test for protection, the global consensus is the “reasonable belief” test. This is the objective test that information is credible for another person with similar knowledge or experience. Significantly, the whistle-blower can be mistaken, although no law protects knowingly false disclosures.
However, this act uses the outmoded “good faith” standard. That has been discarded, because, first, it's subjective, which creates an inherent chilling effect, and second, because in many cases it led to putting the whistle-blower's motives for disclosing misconduct on trial even more than the alleged misconduct itself. While motives are relevant for credibility of evidence, they're totally irrelevant for deciding whether disclosing information should be protected. The point of whistle-blower laws is to maximize the free flow of information from all witnesses who could help the public and not to make moral judgments about why someone exposed misconduct.
The other part of legal standards is burdens of proof. Nearly all modern whistle-blower laws also have a two-part reverse burden of proof. The whistle-blower's burden is to prove a connection between protected activity and the damaging action, that the action was taken at least for partially illegal reasons. When that occurs, the burden of proof reverses to the employer to prove that it acted for lawful reasons independent of freedom of speech. This two-part reverse burden of proof is standard in almost all modern whistle-blower laws.
Canada's act has no burdens of proof. My understanding from talking with NGOs here is that in practice the burden is entirely on the whistle-blower. This hopelessly stacks the deck.
But once we get out of infrastructure, you have to have a realistic time frame to act on rights. It can take a lengthy campaign to find a good lawyer and gather evidence to file a winning lawsuit, and with a short statute of limitations, employees may not even know that they have rights before it's too late to act on them. Six months is the minimum. This act gives 60 days.
What's the bottom line for any whistle-blower law? It is relief for those who win, and unless there is a “make whole” commitment in the law to compensate whistle-blowers for all the direct and indirect damage from retaliation, they will still lose by winning, and the law will make the chilling effect worse. This has to also include the cost of litigation, such as the cost of hiring an attorney so that you have a chance to fight your case. This act does not include the “make whole” principle, and it has only token, dormant provisions for attorney fees.
Now let's go to preventing retaliation, personal accountability for retaliation. Without it, through liability—
Thank you, Mr. Chair, and thank you to all members of the committee.
It is a great privilege to participate in what I believe is a critical and essential function, and that is to restore trust in our public service by locking in legitimate rights for the protection of whistle-blowers.
Briefly, I am a lawyer with 25 years of work in this field. In 1998 I founded FAIR, the Federal Accountability Initiative for Reform, and I served as chair of the board for the Government Accountability Project, Tom's organization, in Washington, D.C. I authored two private member whistle-blower bills, introduced in the House in 2002 and 2004, and I've testified to five different Commons and Senate committees. It is fair to say, no pun intended, that my entire professional work for over two decades has been given to promoting the need to protect whistle-blowers and engaging the Canadian public in understanding the indispensable role they play in promoting accountable government.
My clearest understanding of the mighty role that whistle-blowers play in shining a light on corruption and holding powerful institutions to account is as a result of my own whistle-blowing. In 1992, I joined the then Department of External Affairs, and five months in, my life changed forever. I would like to share with you the betrayals of the public trust I discovered and endured, and the efforts at corrective action I took internally for six years, right up to the minister, and externally for 13 years in legal proceedings, but I can't because I am gagged. You must abolish this manoeuvre.
In the absence of being able to speak freely, I will read from a newspaper article by journalist Greg Weston, entitled “Enemy of the state”. It says:
||Joanna...had just joined Foreign Affairs as a property manager when she got her first glimpse of taxpayer hell, a Canadian trade official's Tokyo digs costing over $350,000 a year—in rent.
||Seems the official didn't fancy an $18-million mansion owned by the Canadian government in the same city, which...sat empty for almost four years.
||Unfortunately, Canada's outpost of opulence in Japan wasn't the only diplomatic money pit taking taxpayers for a ride of the limo kind.
||Almost everywhere she went, Gualtieri discovered Canada's official face to the world was laughing all the way to the public purse.
||Naturally, she screamed loud and long to her bosses....
||In her mind, she was just doing her job.
Put simply, whistle-blowers are employees who exercise their free speech rights to challenge abuses of power or illegality that harm or betray the public. They represent the highest ideals of public service: loyalty, honesty, and dedication. Let us consider their contributions.
Whistle-blowers save lives. They succeeded in shutting down nuclear plants that were 97% complete, because of shoddy building materials. They have compelled drug companies to withdraw dangerous and lethal drugs. In Canada, Dr. Nancy Olivieri, likely Canada's most prominent whistle-blower, endured 20 years of legal battles because she refused to stay silent about a drug that her data showed as harmful. Frances Kelsey, a Canadian hero, warned the FDA about the dangers of thalidomide. They didn't license it. In Canada we did, and we know the legacy.
Whistle-blowers protect our national security. Pioneer Daniel Ellsberg risked everything when he disclosed secret files, known as the Pentagon papers, about the lies and deceptions the American government promulgated about the Vietnam War. His disclosures to media are widely credited with bringing an end to the war.
If there is ever a doubt about the necessity for the right to blow the whistle to media, listen to what Justice Hugo Black, writing for the Supreme Court of the United States, said:
||Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die.... In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post...should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the...war, the newspapers nobly did...that which the Founders hoped and trusted they would do.
I had the privilege to meet and talk with Frank Serpico, who blew the whistle on corruption in the NYPD. I wondered why we had heard so little of him until we learned that the trauma led him to seek quiet refuge in Europe.
Whistle-blowers safeguard the public purse and innocent investors. Wrongful spending of public money is nothing new, and neither is cooking the books. Time and again we have witnessed financial scandals—Enron, Nortel, the gun registry, HRDC, the sponsorship scandal, the Senate—in which whistle-blowing could have brought a pre-emptive end to the wrongdoing. Why, then, do we do so little to protect them?
The answer is again simple: powerful institutions do not invite scrutiny. When faced with challenge, the instinct is to extinguish the challenge without ever considering the merit of the matter. What, then, must we do?
First and foremost, we must recognize that leadership is the essential cornerstone of a change movement. Never has a government or politician in Canada shown consistent and passionate commitment to fight for the rights and protection of conscientious whistle-blowers. Your contribution to public life and the health of our nation will be remembered by your commitment to this current undertaking. All else flows from these principles: freedom of speech is a right, trust in our public institutions is paramount, and politicians owe a duty of care to their constituents.
The preponderance of testimony to this committee has been about fine-tuning the legislation. Some presenters have employed negativity and even ad hominem attacks against the Public Sector Integrity Commissioner himself. With 25 years' experience, I see this approach as missing the point. It is like building a fire station without any fire trucks. A law without the prerequisite processes in place to drive the law, without the cultural revolution required to educate the public about the existence and benefits of the law, has little relevance.
The first order of business is to engage in a broad, meaningful, educative movement at the grassroots, not with academics and consultants but with real-life whistle-blowers. They need to be heard. Second and parallel, we need real protection laws, not paper shields, as Tom says. Without real protection, it is presumptuous and immoral to ask whistle-blowers to step forward.
Martin Luther King, Jr., said:
||Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.
Herein are the five key elements of any credible whistle-blower protection law.
The first is full free-speech rights. Tom has already spoken to this. Remember, we have a constitutionally guaranteed freedom of expression, and this means that a whistle-blower should be able to self-determine how to blow the whistle. In theory, PSIC is a sound idea, but two points must be made. First, it is naive to believe that an office like PSIC has the power, independence, and resources to take on cases of monumental impact and embarrassment to government. By definition, it is not a failing of the commissioner, but of the structure of the commission itself. Despite a $60-million budget, Justice Gomery could not get to the bottom of the sponsorship scandal.
To highlight the absurdity of a law that imposes exclusive domain on PSIC, consider the following. In Canada, a justice official in a Trump government with information about Russian interference would be compelled to blow the whistle to PSIC. Casting no judgment on any incumbent commissioner, it is absurd to think this would work. The budget is not independent. It is entirely dependent on government, more specifically Treasury Board, and we can see how government could neuter the office by cutting the budget. As Tom said, all disclosures must be protected.
Regarding forums, it is absolutely essential that whistle-blowers have access to our courts of justice. Retaliation is reported to be around 85%. They deserve access to our courts, not to a secondary process.
Then there is remedy. Tom spoke to this very powerfully. Whistle-blowers who suffer reprisals must be made whole.
Corrective action and public accountability is again a matter Tom spoke to. Until the government gets serious about taking corrective action and leading by example, nothing will change.
In conclusion, the task this committee faces is not an easy one, but it is a clear one. Commit to freedom of expression and embark upon drafting laws that respect this right. The evidence is overwhelming that the current law is fatally flawed. You must take action.
Remember, there are two core principles: one, investigate the wrongdoing and order corrective action, and two, ensure that the whistle-blower is given redress. The current law is focused almost entirely on a strict regime dictating and controlling how public servants blow the whistle. Protection is almost an afterthought.
I end with saying this. This year Canada celebrates 150 years of a proud and rich history. This committee has a unique opportunity to contribute to this milestone. I ask you to take the steps to finally secure meaningful and legitimate whistle-blower rights for our public service and protect the inalienable principle of the public's right to know.
Thank you very much for this opportunity.
Thank you very much to the committee for the opportunity to testify today.
My name is Duff Conacher. I am co-founder of Democracy Watch, which started up in 1993. We now have 45,000 supporters across the country and another 100,000 people who have signed petitions in support of one or another of our campaigns, including our campaign to protect whistle-blowers who protect Canadians.
More than 21,000 people have signed a petition. The leaders of each federal party would have received those letters, and that's just in the last couple of weeks—a petition that we launched just two weeks ago on change.org. It calls for 17 key changes by the federal government, not just to strengthen the Public Sector Disclosure Protection Act but to strengthen whistle-blower protection overall.
Whistle-blower protection is not only needed for public sector workers. I know the system is currently open to anyone who might want to file a complaint with the Integrity Commissioner, but the Integrity Commissioner would have difficulty protecting people from retaliation who are outside the public sector currently. As well, private sector workers in federally regulated institutions are not protected by the law, and the overall system for private sector workers is very inadequate. There are some protections under competition law, labour law, and environmental law, but education as to where to go and the entire system of protection is far too weak, as it is for public sector workers.
The petition calls for 17 key changes to the federal government system to ensure that everyone who blows the whistle on business or government wrongdoing in the federal sector will be fully and effectively protected. As the current banking service scandals show, such protection is needed not just for public sector workers but for all federally regulated business workers.
I won't go through all of the 17 key changes in detail, but I am happy to give you detail. I have made a submission to the committee, so you will have them. They're set out in the petition.
Our first is ensuring that everyone is covered by the protection law and system, including political staff and also including CSIS, RCMP officers, and the military, who are currently not covered by any system.
Another is allowing everyone to file their complaint directly and anonymously with the protection commissioner. That commissioner should not only be the Public Sector Integrity Commissioner, but at the federal level we are proposing that there be a private sector central office set up to cover anyone in the federal private sector. It would be a clearing house, ombudsman-like office that would help them find the law enforcement agency they should go to, while protecting them as soon as they file a complaint.
Next is ensuring that the protection commissioner is fully and independently appointed and empowered to impose penalties. First of all, in terms of appointment, Ontario has the best practice appointment system. They only, unfortunately, use it for provincially appointed judges. An independent commission does a public merit-based search, comes up with a short list, submits that short list to the minister, and the minister has to choose from that short list for any position that's open on the provincial bench in Ontario.
That system should be used for all cabinet appointments, especially of anyone involved in law enforcement. Currently the ruling party chooses the Integrity Commissioner or all the other officers of Parliament. The opposition parties are consulted, but they don't have any power at all. Instead, an independent commission should be set up, as Ontario has done. It's the best practice in the world.
Next is requiring the protection commissioner or agency to conduct audits and to rule on all complaints publicly, in a timely manner, with the identity of all wrongdoers made public.
Currently, the Integrity Commissioner is using a discretionary measure under the Privacy Act to hide people who are employed by the public who have done wrong. It's just a bad idea. Those people can leave and someone else may hire them never knowing that they've actually done wrong. They may transfer within government, and the other people in a different government division do not know that they've done wrong.
It's a discretionary measure under the Privacy Act. There's no reason at all to hide name of a wrongdoer. Unfortunately, the Integrity Commissioner is abusing that discretion currently. It should be taken away from the commissioner.
The commissioner should also have the power to impose penalties, administrative monetary penalties, as a front-line enforcement officer so that we don't have to go through the whole process of the tribunal every single time.
Next, whistle-blowers need to be compensated fully for legal advice that they need, and they should also be rewarded adequately if they are reporting wrongdoing that is proven. That is because whistle-blowers stick out their necks and often either have to leave their jobs or move their jobs. In the U.S., it's a 10% rule, essentially, for both private- and public-sector whistle-blowing. They get 10% of what they saved the government or in terms of the fine under the securities law. We don't necessarily have to go that high, but I think at least one year's salary should be provided to somebody and also priority in transferring within government if their allegations are proven.
Finally, I have a couple of quick ones. First is allowing everyone to appeal to court if they disagree with the protection commissioner's ruling, making sure that's set.
A very important measure in the U.S. was proven that you need to reverse the onus so that the employer would always have to prove that retaliation was not taken against the whistle-blower. If you leave it that the whistle-blower has to prove it, in the first 2,000 cases in the U.S. where that was heard, the whistle-blower lost every time. It is often very difficult to prove retaliation.
Finally, ensure that there's an independent audit of the protection system at least every three years.
The federal Liberals have promised open government and openness by default. If the Liberals do not strengthen the whistle-blower protection law, they will not be able to keep that promise. You cannot have open government if whistle-blowers are not protected fully and effectively.
I welcome your questions. Thank you very much.
It's a great honour to be here today.
It's an honour also to be in Canada. I'm a trained lawyer and called to the bar in Ontario, but I'm also a lawyer in the U.K. of the Law Society of England and Wales, and my career working on whistle-blowing has been in Europe and in the U.K.
I want to say that from a Canadian point of view, I started into this work because it seemed Canadian to me. It seemed to be about doing the right thing genuinely, honestly, when you come across wrongdoing. In the U.K. it was very much from a good governance, better regulation, good government point of view.
I think one thing you need to keep an eye on is that most laws that are being developed and have been developed around public interest whistle-blowing are both around the protection of the whistle-blower but also very much about freedom of and access to information—the public's right to know in the end, if they're being put at risk, if their lives and their taxpayer money is being misused.
I also worked a lot internationally, because as is the case for Tom Devine at GAP, there are few organizations that do this work. Where we were in the U.K., where I was deputy director for close to nine years, we actually helped draft a law that was put on the books. Organizations and governments and lawyers and jurists and parliamentarians came to us over the years, and so in the end I have set up Whistleblowing International Network with civil society organizations and a lot of public interest lawyers to talk about the tools and why this is so important internationally as well as within national jurisdictions.
I think this work that you're doing is deeply important for Canadian democracy. One thing that I think you've heard is that the object of the law seems already, if you read the preamble, very limited. In 2005, I remember, when the law came across my desk—because I was interested from afar—it felt like a very small step in a small direction. When I look at it now, it seems incredibly limited.
What has happened internationally is that the world has moved on dramatically. I also think that the law is not looking at it from the point of view of public information being dealt with properly—any information that discloses public interest issues—or of protecting those civil servants and others who raise those issues. It's also being too restrictive in the way that raising them is meant to go through a process.
One thing to look at is what the U.K. system did. They very much looked at protection as a way to facilitate the free flow of communication. It did not put any duties on the regulators. There was considered to be a system wherein different bodies had different regulatory authority. If they got information, it was within their mandate to deal with it. Then you'd be protected for going to that body. I think that was very much part of building on an already British system.
But for some of those regulators, as we've been through a period of deregulation and light-touch regulation, there has been a lot more perspective on making them do their jobs. Duties and responsibilities of the institutions to investigate and to deal with the issues have been greater and greater internationally. One way to think about it is in terms of accountability. Rather than how I blow the whistle and whether I do it right or not, it's a case of who is responsible if there is harm. Who has to account for it?
I don't mean scapegoating; I mean explaining your conduct. Closed systems of addressing information and protecting individuals always need to face the potential that they will be asked to explain their actions to an oversight body or to other systems.
When I look at the Canadian system now, although there are bits of independence, it looks like a closed system for the public service to deal with things and, even in the preamble, to maintain confidence in the institutions of government. That's an outcome for dealing with public interest information; it's not the goal. If the confidence is rightly judged not to be high enough and change is needed to regain it, you need to know about it.
This is where I see, in just the purpose of the law and the way it has been set up, that it is designed to be a little bit less than something that actually deals with the information that could be damaging and put people at risk.
You've heard a lot about the public-private split. That, again, was never part of the U.K. system. It fit in with the employment protection system that covered anyone with work. In fact they've extended it from being “employees”, in the legal definitions, to contractors, to interns, to all sorts of people who come across wrongdoing.
If you think about it as an early preventive method of dealing with things, you'll want people who come across wrongdoing to speak up early. Again, that's where I would think that the definitions and scope of the information in your law is too high for the early protection to happen. When people start to face retaliation or a shutting down of a system that doesn't want to be questioned, they become discredited over a long period of time, so you need to think about earlier protections, closer to the problems, and as well make sure that there are the routes outside so that those who are responsible earlier have to explain. That's where you have the safe alternatives to silence.
Direct access to remedies, I think you've heard a lot about that. I'm happy to talk further about that, but that's a natural justice issue. Not having that doesn't make a lot of sense.
As well, I think there seems to be a fundamental confusion around the scope of the public interest, about its being around conduct of individuals. In the reprisal element it's really important to think about detriment not being a j'accuse situation, that you have to necessarily find a wrongdoer in terms of the reprisals. You may have heard that the scope in the U.K. is around any detriment suffered, which is about not getting good evaluations, not having the career advancement. A lot of people will be involved in those decisions. There may not be someone out to get someone because of their disclosure, but a system that's starting to discredit them, that's not questioning, and that just carries on.
I've heard some statistics that maybe 50% or more of public servants in Canada at the federal level—it's even higher and I find that shocking—might feel either that they are not able to speak up about any kind of wrongdoing or ethical misconduct, or feel that they wouldn't be protected as part of the public service. There are a number of issues around the scope: the duties and responsibilities to respond to disclosures; making sure it is covering a wide range to fulfill the purpose of the act; the wide range of people who would have information that would be of value; that you look at it as who might be accountable for the wrongdoing rather than accountable for the way they tell you about it; direct access to remedies; and finally, access to information.
We've talked about the gag orders, but the idea that even the information that the Public Sector Integrity Commissioner's office receives is somehow never to be put in the public domain. I'm not sure if I've understood what the rules are of access to information of the PSIC's work over years, and if that cannot be eventually understood by the public. Those things, I think, are quite serious issues if you're talking about this as both a transparency and an accountability piece of legislation.
Thank you for the opportunity and privilege to attend here today.
I was raised on a farm and started working as a carpenter apprentice and in the logging industry as a faller. In 1982, I became a bonded contractor at 27 years of age, which allowed me the freedom to tender publicly funded projects—that is, until I was put out of business by the federal government.
In October 2008, I was invited to tender a project at Kent prison, replacing porcelain sinks and toilets in 160 cells with stainless steel fixtures. I was the low bidder and awarded the contract. That is when the problems began.
On the first day on site, after unloading the materials, I was told that we could not proceed with work because of a snag. I received no explanation and eventually learned that the snag was asbestos. I later learned that Kent had just been seriously contaminated with asbestos exposure by allowing a contractor to grind floor tile that contained asbestos with no abatement procedures. The guards discovered the release, and after serious exposures to them, the inmates, and also workers from that contractor, apparently the guards took job action.
We were restricted to installing sinks only. Public Works then suspended the toilet installation by five weeks. Toilet installation required rebuilding leaking valves, but unknown to me and my crew, those valves contained very high concentrations of asbestos. No one told me this. I found it out through my own inquiries. By this time I, my crew, and many others in the facility had already been exposed.
When I reported this serious matter, instead of their acknowledging the problem, I was treated as the problem. It seemed that every effort was made to deny what had happened and to punish me. I reported this to the oversight branch of Public Works, under the control of Barbara Glover. They conducted an investigation, with Margherita Finn from the special investigations department coming to interview me in B.C. Now there was a spark of hope. To my astonishment, their verdict was that there was no wrongdoing.
I've gone nowhere with other agencies, so PSIC was my last hope. I submitted a disclosure of wrongdoing; however, dealing with PSIC turned out to be a nightmare. For example, they obviously gave my case very low priority. It eventually took 24 months to complete their investigation. At one point, they told me they could not speak to me because I was from the private sector, even though I was the whistle-blower.
In all of the two years trying to communicate with PSIC, I probably had less than two hours of conversation with them. They kept me in the dark nearly all the time regarding the status of my case. Eventually a contractor investigator was assigned, who seemed to be very competent and thorough. She told me that based on the evidence it looked as if there was serious wrongdoing. She planned to come to B.C. to interview me and made a list of 29 questions she felt needed to be answered before that interview.
Everything went quiet. I found out after several months that her contract had been allowed to expire, rather than complete the investigation.
A new investigator, a member of the PSIC staff, was assigned, who wrapped up everything in a few days. He never spoke to me or key witnesses or attempted to have the 29 questions answered. The conclusion from the Integrity Commissioner, Mario Dion, was that there was no wrongdoing. It relied upon the assurances from the two departments that were implicated in the alleged wrongdoing: PWGSC and HRSDC.
His letter contained a reference to an asbestos-containing material or “ACM” survey done for Kent prison in 2004. Before receiving PSIC's decision of no wrongdoing, I did not know about the existence of that report on Kent, although PSIC did. This was new information to me. For over five years I'd been asking for information about asbestos in the Kent prison. Eventually, through ATIP, I received the ACM report. I have it here.
On page 3 of this report, the primary contact reference is shown as Michael Cuccione. He was the person who had invited me to tender and was also the project officer of my contract. Both Public Works and PSIC had hidden this document from me. This is a document that, had I been shown it at the start, would have saved me, my crew, and others from exposure to deadly asbestos. In fact, I did not need the whole document, but only the following two sentences:
|| ...ACM gaskets are most likely installed on all mechanical systems (i.e. domestic water...) throughout the facility, however once these materials have been installed they are hidden from plain view and impossible to find without dismantling the system. Therefore, ACM abatement procedures should be exercised when this material is disturbed or removed during service work.
That's straight from the report.
I repeat, this is a document that Public Works and PSIC hid from me and from other witnesses while arriving at their conclusion that there was no wrongdoing. If I had known about this document, do you really think I would have exposed myself and my crew to asbestos? If I did, I would have been faced with huge fines from WorkSafeBC and most probably lawsuits from others.
Throughout the confusion of all this, I was supported by Allan Cutler and David Hutton. David offered to review the documentation I had assembled and wrote a 17-page report, which has been entered into the evidence for the committee. This report explains how PSIC concealed vital evidence from me and hobbled its own investigation.
Today, my circumstances have changed unimaginably. I have lost my bonding status and my business is bankrupt. My health may be at risk. I never know when I might receive the diagnosis of asbestos-related disease that is a death sentence. I'm now estranged from business associates, friends, and worst of all family, who believe that I must have done something wrong to cause all this.
Clients both public and private have quit calling me for work, an unofficial blacklist. This dispute with Public Works has overtaken my life and taken a serious toll. Many think I now have mental problems. In some respects they are correct, as I am on a path of becoming seriously affected by PTSD. I'm now the primary caregiver for our adopted daughter, a Romanian orphan with special needs who requires full-time attention. At times I feel I am scarcely hanging on to my sanity.
Yet the government is still not finished with me. I have launched a lawsuit against them, but I've been told that the Department of Justice will have a whole team of lawyers lined up that could run up my legal bills into additional tens or hundreds of thousands of dollars.
Both my father and grandfather served overseas in past World Wars, and they believed they fought to preserve our Canadian values of freedom and common decency, and in their honour I'm doing the same in a slightly different way.
Where do I turn to now? Do any of you know of a way that I can finally get some help without further confrontation?
I really have no advice. People have asked me what they would do. I've had people coming to me, especially guards who worked at Kent, saying, “What can we do?” Before I came here, one guard told me he has evidence of six different incidents of asbestos exposure in Kent prison. That's before, during, and after my time. It doesn't stop.
I've listened to quite a bit of testimony here, and there's one subject I haven't heard and would like to impress upon you as parliamentarians. It's not anything to do with my case. Much of government has been told that we need to run government like business. There is an element of truth to that, but there is a distinct difference between government procurement and public procurement. So many things that are legal in the private sector are not really proper in the public sector. You have to disclose full transparency and accountability. The private sector doesn't have to do that.
There's a fundamental problem in government believing that we need to run government the same as the private sector. That's not totally true. When it comes to increasing efficiency and fixing problems, yes, but I don't agree with the almost decimation of our public tendering process. It's almost gone out the window. Really, it's the president of the Canadian Construction Association who should be here explaining this, not me. We're going to RFPs. We're going to P3s and design-build. These all work well in the private sector. They don't work well for government, because they don't have accountability and transparency. It's not there.
I'm way off topic, but there has to be a fundamental change.
I have an email here that I should have submitted. It's from senior management. I found it just before I came. It's one high-powered bureaucrat commending other bureaucrats, and the file that's referred to is my file. It says, “The project managers and the contracting officer have worked closely together over the past two and a half years to resolve this file, and should be commended for their tenacity. Overall the staff have been involved with the Department of Justice lawyers, the Office of Procurement Ombudsman Margherita Finn, and Garrett's legal representatives, as well as ATIP requests for file information.”
This is fundamentally wrong.
I want to thank the witnesses for being here today.
Thank you, Mr. Garrett. I sympathize with your bad experience.
For some time, we've been looking at the issue of whistle-blowers in Canada. However, I have the impression that we're moving in all directions across the country to try to solve a problem that, to be solved, requires a guide. I have the impression that a number of players are trying to get involved in the process at the same time and to justify themselves.
Ms. Myers, you said that whistle-blowers don't aim to make money. However, I learned today that the Ontario government offers five million dollars as a reward. I wasn't aware of this. I'm shocked, to say the least. We have to wonder about the goal of this type of practice. In reality, we want whistle-blowers who are actually experiencing a situation of this nature to be credible, but also to be protected. There's the protection issue, which is related to whether public disclosure occurs. However, I've realized that whistle-blowers carry everything on their shoulders.
Why couldn't a whistle-blower only sound the alarm and then be relieved of the responsibility? The case could be studied at the federal, provincial or municipal level, if necessary. The legal aspect of the proceedings would fall under an entity that would determine whether the whistle-blower is credible and whether the process should continue.
I want to hear your comments on the matter.
In French, especially in France, whistle-blowers are called “lanceurs d'alerte”. It's an appropriate expression. The term “whistle-blowing” is used everywhere because it's neutral. However, there are still problems on the English side, even in England.
I would say that the reward system is a separate system. I have some concerns about it, but in a financial situation—the SEC is a financial—then they are paying, but they are also finding that without the protections.... Even with the SEC's experience in the U.S.—and I've been in the same room with the person who set up their whistle-blowing system—most of the whistle-blowers who come to them never get a reward. It's quite limited, and in fact they're doing it because it's wrong.
It put it out there. It appealed to the money-making side, and it works a lot in the American system. It has caused great upset in Europe as well, as has anonymity and anonymous reporting. You've had fascist states, and it has been, “Go only to the state, and we will keep you...and we'll use it against other people.”
There's another thing you have to think about, which is having more than one channel for people to go to: important channels, the right channels, regulators who have the mandate to deal with the issue, managers who have the responsibility to respond, a PSIC that allows that flow to keep going to the right places, not a closed system that then isn't accountable itself.
You're absolutely right. It's about taking the responsibility for the investigation away, but not the responsibility for doing the right thing away from whistle-blowers. It's not just saying come to us, like a child, and then you are not involved anymore.
We do have an office. It's the Public Sector Integrity Commissioner, but there are literally hundreds of cases that have still not been given the full investigation and fair investigation by that office. The current commissioner is someone who has been there pretty much through the whole time, and as far as we know, has never blown the whistle on what was massive wrongdoing by the first Integrity Commissioner and also wrongdoing by the second commissioner.
People have tried to protect Canadians by blowing the whistle on governments that were wasting billions of dollars approving dangerous goods, covering up scandals involving big businesses, gouging them, selling hazardous products, and covering up pollution and oil spills. Those people have been harassed, fired from their jobs, sued, silenced, and hurt by the government and big businesses—not just the federal government but provincial governments as well.
That's all because the laws in Canada are weak, and enforcement is negligently bad. We do have the framework of a system, but we need these many changes, the 17 listed in this petition that more than 21,000 people have supported, to make the system effective and to fully and effectively protect whistle-blowers.
Again, you can argue about how much a reward should be, but the best practice is to provide someone with a bit of a buffer so that they know when they're going out on that limb that they have a buffer if the limb gets cut off behind them because of negligently bad enforcement by someone who is not doing their job properly, as has happened hundreds of times in Canada in the last 10 years at the federal level alone.
To all of our witnesses, your testimony here has been instructive and extremely informative.
Mr. Garrett, just on a personal note, probably no words of mine could ever express the sorrow I have for the situation you've endured over the number of years you've been fighting this battle. I can only hope that the final report and recommendations from this committee will go in some small measure, and hopefully a large measure, to redressing the situation that you've experienced. Hopefully no other employee that has either worked for the government or has done work on behalf of the government will have to experience what you experienced.
Thank you all for being here.
Colleagues, I think we should go in camera for just a few moments. My reading of this is that, based on the testimony we've been hearing over the last number of days, there may be additional witnesses who committee members would like to recommend we hear from as we continue this study. I know Mr. Weir has indicated he has some, and I think, Monsieur, you may have some as well.
I will excuse our witnesses and suspend for just a couple of minutes, and we'll go in camera for about five minutes.
[Proceedings continue in camera]