Thank you very much, Mr. Chair.
Thank you for inviting me here today as part of the committee's important legislative review of the Public Servants Disclosure Protection Act.
As you may know, this act is an important part of the Government of Canada's integrity framework and we take it quite seriously. We feel that integrity is the cornerstone of good governance and democracy. By upholding the highest ethical standards, public servants safeguard and enhance public confidence in the honesty, fairness, and impartiality of the federal public sector.
To this end, the act sets out the measures to promote an ethical climate. It establishes the foundation to promote a culture of right-doing and a positive ethical climate through measures such as the creation of the Values and Ethics Code for the Public Sector, which applies to some crown corporations, separate agencies, and the core public administration. The code, along with the organizational codes of conduct, describe for public servants at all levels the values and ethical practices that guide direction, decision-making, and behaviour across the public sector.
The act also encourages employees in the public sector to come forward if they have reason to believe that serious wrongdoing has taken place, and it provides protections for employees against reprisal when they do so.
The act therefore addresses issues that are both complicated and highly sensitive in nature, with the result that the legislation itself is complex.
That said, I would welcome any proposals your committee might make to simplify this legislation.
To date, I've read the testimony. I know your committee has heard testimony from a very diverse group of witnesses and I think you should be commended for considering such a wide variety of perspectives.
The challenge before your committee as it weighs the evidence is a very important one, and I'm very much looking forward to your committee's recommendations for improving the legislation and how it functions. I recognize that there are areas where the act could be improved. It has been in place now for almost 10 years. It is to be expected that, during this time, issues in its administration, the mechanics of its procedures, or in the scope of what the legislation covers would become evident and I think you've found a few.
For example, it has become apparent that it is important to protect not just the discloser, but others who may be associated with the case, even if that association is mistaken.
Mr. Chair, I also agree that the legislation should make it as easy as possible for someone to come forward and to be protected when they do.
Options might include simpler and more direct access to the Public Servants Disclosure Protection Tribunal, or the implementation of a reverse onus for the employer to prove that no reprisal has taken place.
It is worth noting that several witnesses have also echoed the importance of having different disclosure channels available. Several technical recommendations have also been brought forward by the stakeholders you've heard from to address some of the specific areas of the act as it now stands.
Another issue to be considered is whether there is sufficient direction in the legislation around the investigation process for internal disclosures and perhaps how these investigations might be appropriately related to the disciplinary investigations of individual wrongdoers.
I think this legislative review also represents an opportunity for clarification of the interplay between this act and other legislation, such as the Privacy Act and the Access to Information Act. It would also be useful for the committee to consider these matters with a view to balancing the protection of the discloser with the rights of the accused.
I've also followed with interest the testimony of witnesses from several international jurisdictions. Each jurisdiction's regime has its strengths and weaknesses. I would certainly welcome your advice on how to apply the many lessons learned in these other jurisdictions to find solutions that will work in the Canadian context.
For example, I believe further efforts are required to raise awareness of the act and the system currently in place.
This includes an understanding of the roles and responsibilities of employees, supervisors and deputy heads, and of the resources available to employees should they wish to disclose a wrongdoing.
These include the Public Sector Integrity Commissioner and the organization's designated senior officer for disclosure.
Mr. Chair, the Government of Canada is committed to promoting a positive and respectful public sector culture that is grounded in values and ethics. As I said in my introduction, I believe that a well-functioning disclosure regime plays a very vital role in such a culture.
For my part, I very much look forward to your recommendations for ways to improve this important piece of legislation and I will take it very seriously.
I want to thank the two witnesses for being here today.
I'll start by asking a question to clarify an answer that we may have already received. I'll ask you the question right away, so that I don't forget it.
Some witnesses have suggested that we let the Office of the Public Sector Integrity Commissioner of Canada take corrective action when wrongdoing is found. However, the act doesn't aim to replace other mechanisms or processes set out by different legislation or collective agreements, such as criminal proceedings under the Criminal Code, grievance procedures or harassment complaint processes. A possible alternative is to allow for the use of the information gathered in an Office of the Public Sector Integrity Commissioner of Canada investigation during the disciplinary procedures carried out pursuant to the Public Service Labour Relations Act when wrongdoing is found.
What's the current discipline system? What do you think of this proposal?
Thank you for the question.
If there's a wrongdoing found, I know that sometimes the commissioner can make some suggestions for where to look for discipline, but it's up to the deputy head. The deputy heads at my level are accountable in the public service for discipline and for managing the human resources within a department. The deputy heads, in those cases where wrongdoing is found, do immediately start looking at possible discipline. In some cases they may hire a third party to look at what should be done. When I was reading your committee's testimony, I noted that it's one of the areas where oftentimes the deputy head has to start all over again with a separate investigation and can't use the investigation that's been done by the commissioner into wrongdoing. If that could be made available to the deputy head for the investigation, I think it would certainly help facilitate proper discipline.
They have a wide range of mechanisms available to them. If the deputy head, for example, thinks that they could be in some kind of conflict, they can also ask another department or somebody to look into the discipline for them. There are various mechanisms that exist, but it is the deputy head who does the report.
I want to add something.
When I hear a witness say this, I think a significant change must be made. It seems that whistleblowers don't have much confidence. Some people seem to have enough confidence to come forward and provide privileged information, but others appear more reluctant to do so.
Some foreign specialists who have had other experiences elsewhere consider Canada's current system so flawed that it needs to be started again from scratch. The system doesn't seem to have a strong enough foundation.
Are you open to a review of the system? I'm not saying that we should start again from scratch, but we need to build a stronger foundation to restore people's confidence so that they use the system correctly.
I just want to bounce over to section 10, because I don't have a lot of time.
Section 10 requires that CEOs, as you've mentioned, establish procedures and manage disclosures. Has this been done, and what kind of guidance and direction are they getting?
It's one thing to say that they each have to have their own code, but the system has failed our public servants. It has failed our taxpayers. It has failed people dealing with the government, quite massively.
It's wonderful that we're doing this, and we have very non-partisan agreement that we have to fix this issue, but what's Treasury Board doing?
This is where we are in a tandem: we don't know who is right, who is wrong, but we're trying to listen to this act, saying, well, the act is a bad act, according to a lot of the witnesses, and we'd like to improve it and improve the processes in place.
I have a scenario that I'd like to share with you. As a chief human resources officer, you are hiring a CEO of an organization. The CEO does not have an accounting designation, but he or she has to sign off on those financial statements. Now, he or she does not know the complexity of the financial statements, so he goes two levels down to the financial officer, who probably is designated and would lose his designation if he were ever, in the private sector, to sign something that was not worthy. How does the financial officer protect himself if the CEO says, “Sign or you lose your job”? And how do they come to you?
We're talking about billions of dollars here. If you do not understand the complexity of the financing of the government and you're signing off, and you're relying on your third level, where is that integrity? Where is good governance?
This is a very good committee, and I think they're very interested in hearing your testimony.
Why don't we do this, colleagues, so that we don't have a disjointed set of questions? Perhaps we can have Madame Therrien's opening statement, then depart and then return.
Madame Therrien, I understand you have a very short opening statement because you want to leave time for questions, but you can certainly expand upon it, if you wish.
There are now 25 minutes, so if you could give your opening statement, we'll then determine whether we have a chance for at least one or two questions.
I prepared everything in English, but I can talk about it in English or in French.
I just want to talk about my whistleblowing experience. It was very difficult.
You talked about various ways to proceed when making a disclosure. I started out by going through the internal channels and turned to people who were higher in the organizational structure. It did not work at all, as they did not think it was a problem. They even threatened me. They told me that if I made unfounded allegations again, it would not work. You talked about the possibility of an independent person investigating. That would be much better, as people protect each other when internal channels are used. They are all colleagues and they protect each other. So there is a sort of a cover-up. I was told that there was no problem.
I then suffered major reprisal in my workplace. I was ostracized, and no one wanted to talk to me. They also started questioning the way I worked. Nothing I was doing was right. If I took a five-minute break like everyone else, they would say that I had taken 10 minutes. I was really hounded, and all my actions were scrutinized and questioned. It was very difficult.
When it comes to using internal channels, anonymity is important because, at the end of the day, those who commit wrongdoings are often in positions of power. They are often high-ranking officials. So if we are under those people, we suffer a great deal. We are put through the ringer, as they say. In any case, that was my experience.
I then went to the union representatives, who told me that the only way to proceed was to file grievances.
Do you know that it was employment insurance quotas I disclosed?
Okay. So I don't need to come back to that.
I was told that the only way to proceed was to go through the grievance process. That is what I did. Fortunately, I had Mr. Yazbeck to help me, as the experience was horrible. I went through two years of hearings and so forth. It was very difficult. Hearing horrible things said about me severely affected me on a psychological level. The employer has a lot of resource, doesn't it? It has a lot of our resources. It has many lawyers and a host of people whose goal is to find all sorts of flaws, to destroy us and our reputation. That is what the employer does.
The hearing with the grievance arbitrator was terrible. The process lasted two years. He concluded that, as the issue did not fall under his jurisdiction, he could not render a decision.
I also turned to the Office of the Public Sector Integrity Commissioner of Canada. In the beginning, I was told that the organization was there to protect whistleblowers. But the process was very complicated. I had to fill out forms, and everything was so complex.
At first, people didn't really know what it was about. I didn't know that there was an integrity commissioner. When I finally filed a complaint, I was told that too many weeks had passed, and the complaint was inadmissible.
Fortunately, Mr. Yazbeck was there. Thanks to his knowledge, he resubmitted my complaint to the integrity commissioner, and it was accepted.
Finally, they decided that the fact that I had lost my job and my security clearance and was suspended without pay did not constitute reprisal. Yet that was the important point I wanted to make—that the government, in reprisal, had fired me to shut me up. It used my example to deter other whistleblowers who may have wanted to talk. I was a good example of what shouldn't be done.
I have said a lot already. I don't know whether I should continue.
I am now in limbo, sitting on the fence. On the one hand, the arbitrator does not want to make a decision because the matter supposedly does not come under his jurisdiction; on the other hand, Mr. Friday is waiting for the arbitrator to render his decision. We almost wonder whether they are talking to each other to make my case slip through the cracks and ensure that it will not be resolved. One is waiting for the other to make a decision, and finally nothing happens.
On the one hand, I am asking this committee to review the act and the policies in order to properly protect whistleblowers. The statutes must focus on the whistleblower. It is very important to protect whistleblowers, and not to protect those who are already in power.
On the other hand, I am wondering whether your committee could, in some way, tell Mr. Friday that he does not have a choice, that he must refer my case to the Public Servants Disclosure Protection Tribunal, since the situation is ridiculous and there is no need to wait anymore. Your action would very clearly indicate that you defend whistleblowers. Your committee would show that it is serious about this issue. It would show that your committee does not just talk, receive briefs and produce reports. It would be a move that would say a lot.
Then the act should be reviewed. It's not just for me. It's true that it would help me, as personal consequences were huge in my case. I am no longer employable, I have no money and I am in debt. It would help me, but it would also be for....
Thank you, witnesses, for your patience.
Colleagues, Mr. Yazbeck has been classified as a witness. Should any of our committee members have questions, he is available to answer them.
Ms. Therrien, thank you for your opening statement.
Colleagues, I think we'll start with the full seven-minute round of questions. If there are additional questions after that, we can continue, but let's see where seven minutes each gets us.
Monsieur Drouin, we have you up first, for seven minutes, please.
We actually talked about it among colleagues. I also talked about it with my team leader. Sometimes, they would not say good morning to me, but would rather say:
“Hey, Sylvie, have you finally put the penalty on this guy?”
In reality, there was no penalty to be imposed in that case. That is what I would hear instead of good morning.
At some point, the team leader told me that I had to refuse benefits to an individual who had applied for them, under the pretext that he had not really looked for work in accordance with the criteria. The individual was an aboriginal who lived in a remote village with only one store. He worked in the fishing industry. Since he was a seasonal worker, he was out of work.
Finally, we talked about some cases in the office. During those conversations, the people around me saw that I was against the way we were processing the files. Do you understand? That is how it came about. In our daily work, it was a matter of case-by-case observation. When I felt that an individual was entitled to employment insurance benefits and I should grant them those benefits, I was told not to do it.
I would agree with that.
I think there is difficulty in relying on the good faith obligation. I'm not condoning bad faith disclosures, but oftentimes people think of good faith as having, for example, a proper motivation. So if somebody is disclosing something because they want to get back at their supervisor, that's going to be bad faith and we don't want to deal with that disclosure. However, it could very well be that the supervisor was engaged in wrongdoing as well. Simply because there's some animus there on behalf of the discloser, that shouldn't disqualify that complaint. I do think we have to be careful with that.
I also think that, historically, in cases where people have gone public and they have been disciplined, the employer has often taken the position that you can't disclose wrongdoing unless you know the allegations to be true, the proof of truth requirement. That's going way too far, because sometimes you don't know and you can't know. Sometimes you just have a suspicion and want somebody to investigate to make sure whether it's true. Frankly, that's the whole role of the commissioner. If somebody has a suspicion, that should be sufficient, as long as it's reasonable and they're not acting in bad faith.
I'm actually not sure what the standard would be in that other situation. I'm not sure how a court would approach that. Certainly, it would be the civil burden of proof—right?—the balance of probabilities, etc. If you are proving reprisal, it's the same burden of proof. It's a balance of probabilities.
The problem with reprisals is that you start with a proposition that the act in question is legitimate and then you have to prove otherwise, and that puts a heavy burden on the complainant, whereas in the case you're talking about, there's a standard out there that's applicable to the respondent or the defendant. In a way it almost shifts the burden, so to speak, because we're looking at whether they complied with that standard.
When I think it through, I guess in that sense it might be easier. I just think that the nature of reprisal as an insidious, difficult thing in the workplace is uniquely suited to an expert investigator, an expert decision-maker, or an expert tribunal to deal with, as opposed to a court dealing with a more general duty on behalf of somebody vis-à-vis a complainant or employee. I think the need for expertise in this area is crucial. I draw on the human rights jurisprudence for that, because we know that human rights commissions and tribunals have developed an expertise that enables them to identify discrimination and find it.
Madam Therrien, Mr. Yazbeck, thank you very much. Your testimonies have been extremely helpful and illuminating.
We've had some difficulties, frankly, as a committee, getting in touch, or at least getting confirmation from whistle-blowers to come and testify before a committee. We've heard from many bureaucrats. We've heard from many officials who are in charge of whistle-blower protection in other jurisdictions, but very few whistle-blowers. There's a reason for that. In many cases, they're quite frankly fearful of reprisal, even by coming to our committee and testifying in camera.
I applaud your courage for appearing. I thank you for your testimony, your candour, and all of the suggestions both of you have made. It's going to be extremely helpful for our committee as we move forward.
We are adjourned.