Bill C-290

Public Sector Integrity Act

An Act to amend the Public Servants Disclosure Protection Act and to make a consequential amendment to the Conflict of Interest Act

This enactment amends the Public Servants Disclosure Protection Act to, among other things, expand the application of the Act to additional categories of public servants, permit that a protected disclosure be made to certain persons, extend the period during which a reprisal complaint may be filed and add a duty to provide support to public servants.
It also makes a consequential amendment to the Conflict of Interest Act .

[The Chair, Conservative, Kelly McCauley]

I call this meeting to order.

Welcome, everyone, to meeting number 63 of the House of Commons Standing Committee on Government Operations and Estimates.

Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, the committee is meeting on the study of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

Colleagues, one of our witnesses for today, unfortunately, was tied up by their airline and will not be able to make it. That's Mr. Devine, so we have two witnesses today.

Ms. Gualtieri, welcome back. It's fantastic to see you.

Budget Implementation Act, 2023, No. 1

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Madam Speaker, first, I would like to thank the Bloc Québécois for its Bill C‑290, which is currently before the Standing Committee on Government Operations and Estimates.

Of course we agree that workers' rights are important. I think that we can also agree that the government and the Prime Minister are to blame for the current strike.

Based on the questions I got, it is clear that we agree on a lot of things concerning workers' rights and the government's responsibility.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you, Mr. Chair.

Thank you, MP Barrett. We are in support.

Can I just ask for a clarification? How many meetings do you have in mind, and how do you see calling the witnesses impacting specifically Bill C-290 and some of the other work we are doing?

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for joining us today. I will echo the statements of everybody else by thanking Mr. Sabourin for showing the courage to ultimately revisit his painful lived experience.

Thanks also to our colleague, Monsieur Garon, for bringing this forward again.

I think Mr. Sabourin talked a little bit about this. The bill includes making “failure to provide support” to a public servant who is making a reprisal part of the act.

Would this change violate the confidentiality of the process, as additional people would need to know the identity of the discloser? I think you mentioned that it ultimately goes to people who know the people who know the people.

My question is for Madam Forward.

Bill C-290 also includes a new category of wrongdoing, which is “abuse of authority”, but it has no definition within the bill. How can the committee solve the problem of how to define that?

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Mr. Chair.

I want to start off by echoing the comment of my colleague MP Kusie. I also want to recognize and speak to the courage that has been alluded to here and the resolve that it has taken, I believe, for you to speak out and speak publicly.

I won't speak for all of us, but I would say that it is very difficult to understand how a professional public service would allow this culture to exist. It's even more difficult to understand and to hear the extent of the intimidation that you were subjected to and the impact that had on your mental and physical well-being. I want to thank you for coming forward, Mr. Sabourin, and sharing your story with us.

I also want to thank Mr. Garon one more time for introducing Bill C-290. I think the only thing worse than doing nothing is believing that you are doing something when you, in fact, are not.

Reviewing this piece of legislation and acting on it I think is something we are very committed to on this side of the House, of the room.

I don't really have any more questions. I would just turn the floor back to either of you to make any final comments that you would like to make to this committee today.

[Luc Sabourin, Retired Junior Officer, Canada Border Services Agency, As an Individual]

Ladies and gentlemen, thank you very much for having me.

On behalf of my colleagues, I would also like to thank Mr. Garon and Mrs. Vignola.

My name is Luc Sabourin. I'm 55 years old and the father of two young children, a 16‑year‑old girl and a 12‑year‑old boy. I am a whistle-blower who disclosed federal wrongdoings internally.

I was a senior quality control operator for the entry of critical and specific information in a federal database that contributes in part to national and international security. I held the highest security clearances, granted on an extremely limited and restricted basis. I performed my duties in an operational environment for the Canadian government during my 26 years of service, with no incidents in my career file.

My career began on August 13, 1990, and ended tragically and harshly on February 16, 2016. During the period from March 2009 to February 2016, I witnessed a number of criminal wrongdoings in my workplace. On February 16, 2016, I received a constructive administrative dismissal. This administrative procedure was the final step taken by my employer after eight years of psychological, physical and administrative harassment.

This constructive dismissal constituted a major reprisal by my employer for two reasons. First, an outside investigation, but one that was extremely limited and under the administrative control of the branch, revealed and demonstrated that the employer was guilty of harassment towards me.

Second, I used the internal disclosure processes, and religiously followed the employer's internal guidelines and protocols on disclosing wrongdoings and crimes in the federal workplace.

Consequently, management and co‑workers who were the perpetrators undertook a major campaign of reprisals against me just to undermine and destroy me, and to catch me doing something wrong in order to justify my dismissal. For eight years, I was the victim of psychological, physical and administrative harassment in the workplace, as well as a smear campaign, abusive management practices and unwarranted threats from colleagues and members of management. It was so extreme that I suffered a psychological breakdown.

In 2015, I reached the breaking point psychologically and made an unsuccessful suicide attempt. Today, life has given me a second chance to speak on behalf of some of my colleagues who are no longer with us as well as those who are still here. No one should have to go through what internal whistle-blowers experience at the hands of their employer.

I asked for help from the person in charge of my workplace, my Liberal member of Parliament, the Minister of Public Safety and the Minister of Justice. I also made a complaint to the RCMP, which has been unsuccessful to date.

Today, I am on permanent retirement for medical reasons. I am physically, mentally and financially shattered. My personal life and professional career have been destroyed, and the future is uncertain for me and my family.

I can state with certainty that the Government of Canada and the Canadian people had an experienced honest public servant who represented their interests with integrity and transparency. It is for these same reasons that the employer ended my career as a federal public servant.

It is imperative that each of you support amending the current law by passing Bill C‑290 for whistle-blowers in the federal public service. This will protect them and save lives in the interest of transparency and justice. Democracy and public safety must be protected from potentially destructive and illegal situations in the federal public sector.

Thank you all for listening.

[Pamela Forward, President and Executive Director, Whistleblowing Canada Research Society]

Thank you, Mr. Chair.

I'm Pamela Forward, president and executive director of Whistleblowing Canada Research Society. We appreciate very much the opportunity to speak with everybody today.

Our heartfelt thanks to MPs who, thus far, have supported the private member's bill, Bill C-290, an act to amend the Public Servants Disclosure Protection Act, and to the Bloc Québécois member of Parliament from Mirabel, Mr. Jean-Denis Garon, for bringing it forward.

This bill is a long-awaited signal. It's a sign of humanity, compassion and respect towards Canada's public servant whistle-blowers. It will make significant, much-needed improvements and hopefully provoke many more to the deficient PSDPA.

In my time with you I will highlight some historical facts, why improvement in Canada's whistle-blowing regime is needed and thoughts on what more can be done.

In terms of history, here are some key facts.

Both of Canada's major parties have had a hand in the creation of the PSDPA, which was implemented in 2007. Clearly, they knew before the fact that the bill would not improve anything for whistle-blowers. Justice Gomery warned of this in his report on the sponsorship scandal in 1995. Instead of encouraging and empowering whistle-blowers, what it really did was control and suppress them.

More missteps perpetuated the suffering and enabled wrongdoers. First, was the 2012 government decision to disobey a statute—an indictable offence. They did not conduct the required independent review of the PSDPA after five years. Next, was the new government leader's decision to ignore the OGGO committee's 2017 unanimous report of its review of the PSDPA, recommending more than 20 amendments, if I remember correctly.

Why are improvements needed then? Studies and whistle-blower cases confirm that truth and truth-tellers in Canada are imperilled by this uncompromising unwillingness—at least up to now—to provide true protection and stop reprisals. This peril includes major catastrophes to both individuals and society at large, up to, and including, death. When truth dies, harm and corruption grow.

The studies and findings are listed in my submission. They confirm our flawed legislation and dysfunctional cultures.

Also, a key finding is that legislation alone will not protect whistle-blowers. The overriding factor for success is culture. If laws are introduced into an unwelcoming, resistant culture, they will not be properly upheld.

Here are a few whistle-blower cases.

This is an old one that has current consequences. Thirty years ago, in the 1990s, national security whistle-blowers from the then Department of External Affairs, the RCMP and CSIS were suppressed and ostracized. Their careers and health were destroyed for just doing their jobs. They reported on corruption in the Canadian high commission in Hong Kong that allowed Chinese Triads—criminals—to flow into Canada and bring along with them drug and human trafficking, money laundering, inflated house prices, etc. The consequences have persisted until today and have grown to include interference in Canada's elections by the CCP.

Here is a current case waiting to be told. This case concerns the Canada Border Services Agency and an officer who simply did his job by refusing to comply with illegal and potentially criminal orders from his superiors. You're going to hear from him in person. What's breathtaking and frightening is the litany of failures of all of the authorities he contacted who should have helped and could have helped, but didn't. That sadly included MPs from most parties. It's a living testimony to the disintegration of our democratic institutions in real time.

That's something else to consider. I'm going to leave it because of the time. I hope it will come up again.

What is needed then is Bill C‑290. It contains eight internationally recognized best practices. There are 20 in all. A few more are needed to give a whistle-blower a reasonable chance to prevail. We urge you to work collaboratively to include as many as possible in the bill. This is not a partisan issue. Our democracy is under stress, and we need—and you need—whistle-blowers to come forward to help defend it.

The problems plaguing the current regime are.... I'm just going to list them and I have listed solutions in a table—

[Jean-Denis Garon, Bloc, Mirabel, QC]

I already answered that question in a broader sense. If it's all right with you, I could provide you with a written answer and a table summarizing all the recommendations that we chose to include in Bill C‑290.

[Jean-Denis Garon, Bloc, Mirabel, QC]

As I said, first of all, the purpose of the bill is to better protect the anonymity of whistle-blowers and witnesses in investigations.

I'll give you an example. The decision to disclose wrongdoing can have a major impact on someone's career. Those who take this step are seldom the only ones who witnessed the wrongdoing in question. Although corroboration is needed, other witnesses may not be at the same point in their personal journey. Therefore, even if the anonymity of the person making the disclosure is ensured, when the time comes to talk with the witnesses and investigate, if these individuals do not have sufficient protection, this will severely constrain the investigator's investigative authority. This is part of what we had in mind when we drafted the bill.

Another issue relates to the time limits. The current legislation states that a person must make a disclosure within 60 days after witnessing a wrongdoing. I am telling you this because you are going to hear from witnesses who have gone through this process and paid a high price. These 60 days provide an opportunity to ask oneself certain questions. Will I be serving the public interest, and acting in the best interest of the country and sound management of the government? Will I lose my job, be demoted, face harassment and so on?

Indeed, there may be reprisals. Sixty days isn't much time to make this decision. When you get a mortgage rate, it is frozen for three months. This is an important decision, so we want to extend this period to a year. I would say that, in this regard, one year is very little time.

There is also the possibility of referring the matter to the Auditor General. At present, when an individual witnesses criminal acts in the public administration, there is obviously recourse to the RCMP. In the case of gross mismanagement, there is no recourse to the Auditor General. As you know, the Auditor General has a unique skill set within the machinery of government and enjoys a unique level of independence with regard to gross mismanagement. This is part of the proposed changes to the legislation.

Lastly, we have an obligation to support public servants. When a public servant suffers reprisals, this person is being given the opportunity to have the reprisal recognized before being forced to bring the matter before the Federal Court at their own expense, thereby risking bankruptcy. These are major changes that are going to make the process much more effective and much less costly, both for whistle-blowers, who are simply doing their job, and for the government, which must manage the entire process, including the appeal and judicial processes.

This is part of the changes contained in Bill C‑290.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair, for your welcome. That's very kind of you.

I would also like to congratulate my colleague, Mr. Garon, for taking the initiative of introducing Bill C‑290. As the member has just said, this is a tremendous opportunity to reach a strong consensus among all political parties on how to enhance the legislation.

Mr. Garon, I have a few questions for you about certain elements of your bill. A number of the proposed changes involve removing certain restrictions in the act that are intended to prevent overlap with other legislation or organizations. For example, the bill would remove subsection 19.1(4), which prevents individuals from availing themselves of a procedure under another act or a collective agreement when they file a reprisal complaint.

Do you think that the removal of this restriction would lead to significant overlap between recourse mechanisms?

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

Thank you very much, Mr. Chair.

Thank you, Mr. Garon, for being here today, and for the work you did in developing Bill C‑290, work that the government decided not to do.

What do you think are the reasons why the government decided not to implement the recommendations from the committee's 2017 report?

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

Fellow members, thank you for having me. It is a privilege to come before you today to present my bill, Bill C‑290, An Act to amend the Public Servants Disclosure Protection Act.

This is an important moment for me and for many whistle-blowers. This is a historic moment.

For more than 20 years, we have had few opportunities to improve the whistle-blower protection regime within the federal government. I would add that sound management of public finances and government as well as restoring public confidence in the government are deeply non-partisan issues.

We already have a public servants disclosure protection act, but it is flawed, unfortunately, and has at times led to a breakdown in the trust between prospective whistle-blowers and the government. Moreover, according to the independent U.S. organization Government Accountability Project, the Canadian act is one of the weakest of its kind among countries that have this type of legislation. In fact, Canada is ranked behind Lebanon, Rwanda, Pakistan, Bosnia, Tunisia, Uganda, Kenya, Zambia, Kosovo, Namibia, Serbia and many others. This is a problem for a G7 country, a G20 country, an OECD member country and for a democracy that is expected to have sound institutions.

This bill seeks to strengthen the mechanisms that protect the anonymity of whistle-blowers and includes additional categories of public servants in the system. It also seeks to better protect the identity of witnesses who participate in investigations. The bill will increase the obligation to support public servants who disclose wrongdoing and will give them more time to file a complaint. At present, the limitation period is much too short. Disclosing wrongdoing is an extremely demanding process; it can take more than 60 days to decide whether to proceed. The bill will simplify the appeal processes that whistle-blowers can use in the event that they face reprisals. It will also make it possible, in cases of mismanagement, to refer the matter to the Auditor General.

I wish to point out that the current legislation came into being in the wake of the sponsorship scandal, which was exposed thanks to the expertise of the Auditor General, expertise found in few other places within the federal government.

The intent of the bill is to restore confidence between the public service and the federal government, which is extremely important. Whistle-blowers are very courageous individuals who want to better protect the public. The decision to disclose wrongdoing has an enormous impact on the whistle-blower's life.

Over the course of its review, the committee will meet with witnesses whose lives have been shattered by this process. These individuals placed their trust in the process, but it is seriously flawed—as we will see during the clause‑by‑clause review. They ended up being punished for doing good and for wanting to serve Canadians, Quebeckers, taxpayers, democracy at large and our institutions. In some cases, these individuals were even placed under surveillance. The committee may meet some people who are afraid to come before the committee, who fear reprisals. It is this type of situation that we need to address; our democracy depends on it.

By protecting whistle-blowers, we are safeguarding democracy and sound management, as well as the government. Scandals should not be used as a management tool. We cannot wait for a scandal to occur before making adjustments to legislation.

We need to put mechanisms in place to ensure that Canadians who witness irregularities are better served by government institutions, and that is the very intent of the bill that I have introduced in the House of Commons.

Thank you.

[The Chair, Conservative, Kelly McCauley]

Colleagues, good afternoon. I call this meeting to order.

Welcome to meeting number 61 of the House of Commons Standing Committee on Government Operations and Estimates.

Pursuant to the order of reference adopted by the House on Wednesday, February 15, 2023, the committee is meeting on the study of Bill C-290, an act to amend the Public Servants Disclosure Protection Act.

With us we have the creator of the bill, MP Jean-Denis Garon. We will have an opening statement from you for five minutes, sir.

Go ahead.

[The Chair, Conservative, Kelly McCauley]

Do we need a recorded vote or all we all good? I think we're good with the amendment.

(Amendment agreed to)

(Motion as amended agreed to)

That's perfect.

Before we get to you, Mr. Johns, there are a couple of things that I need to clear up with Bill C-290, and I'd like to do that while we're still on track there, if you don't mind.

On the deadline for amendments on Bill C-290, an act to amend the Public Servants Disclosure Protection Act, I would like to set it for May 3, 2023, by noon, if that's fine with everyone. The committee will commence clause-by-clause for Bill C-290, an act to amend the PSDPA, on Monday, May 8, 2023. We have May 10 being held as well if we can't get through that on the clause-by-clause. Are we all comfortable with that?

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

All members received in an email the text of the amended motion on Bill C‑290, an act to amend the public servants disclosure protection act. The motion has been submitted in both official languages. I will read it out:

That, pursuant to the order of reference of Wednesday, February 15, 2023, concerning Bill C-290, An Act to amend the Public Servants Disclosure Protection Act, the Committee invite the following witnesses to appear regarding the protection of federal public servants who disclose wrongdoing: a) Pamela Forwards, President of the Board of Directors of Whistleblowing Canada; b) Joanna Gualtieri, lawyer; c) Luc Sabourin, former employee of the Canada Border Services Agency; d) Julie Dion, former employee of the Canada Border Services Agency; and e) Tom Devine, Legal Director, Government Accountability Project; That the Committee allocate Wednesday, April 19, 2023, and Wednesday, April 26, 2023, to hear these witnesses.

It's basically the same motion that we started to discuss a few weeks ago, and we seemed to have a consensus.

The only difference of note is simply that the dates have changed for the witnesses. The witnesses are aware that they may be summoned in the very near future to testify before the committee. They are looking forward to it, and many of them will propose solid amendments to the bill.

This act is very important in terms of protecting our public servants, citizens and employees, as well as the quality and integrity of government services provided to our citizens.

I hope that the consensus is still there, given that only the dates have changed somewhat.