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 .

[Sean Bruyea]

What I see with the act is that it's really important to see this as a stepping stone for going forward. It's not perfect, but you know what? Nothing passed in Parliament is ever perfect. We work on a system of evolutionary change. There's hardly ever a revolution in Canada in the way things happen, so you know what? It has to start somewhere.

When we're dealing with the culture within a closed system—and the public service is a very closed system; I would juxtapose it against the military's very closed system—that culture has been almost impossible to change with respect to discrimination and sexual harassment, but that has never stopped Parliament from stepping in and saying, “Hey, we're going to start with holding people accountable first and wait for cultural change later.” This is what Bill C-290 does, and I'd like to see that pursued.

[Sean Bruyea]

Thank you very much for the question.

I came up with a standard where I was thinking.... Not being in deep with the law, what occurred to me is that public servants up this point have been seen as the only ones who can be whistle-blowers. The reason is that they meet two criteria: They have insight within their job, and they have a vulnerability to lose that job and suffer other repercussions in the job space.

Bill C-290 does an excellent job of addressing those two concepts and expanding them to contractors who have both insight and vulnerability, as well as former public servants, former RCMP and temporary workers.

In that sense, if we're going to use the criteria of vulnerability, veterans are the most vulnerable of any federally serviced individuals, in that they are often wholly dependant on the Department of Veterans Affairs. Should any one at any level decide to take revenge, then they jeopardize their complete financial security, their complete medical care and often the stability of the family and the home.

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

Thank you very much, Mr. Chair.

I'd like to thank the witnesses who are with us today.

Unfortunately, given the time we have, I will only be able to ask a few questions. I'd like to start with Ms. Myers.

Ms. Myers, you indicated that the European model would probably be the best one going forward in terms of protection of public servant whistle-blowers. I think that would be a place where we would like to take a very close look.

Before I ask my question, I should quickly give a bit of an overview. We understand that Bill C-290, of course, is a private member's bill. There is only so far that it can go in terms of being able to do what Mr. Devine indicated with respect to changing the culture. There are other aspects that would have to come from a government bill to be able to do that. I know the government is considering and working towards updating the PSDPA.

Ms. Myers, Bill C-290, which is before us here, includes an opportunity to remove the references to “good faith” and “reasonable grounds” from the screening sections of the act. I asked one of our witnesses here last week the same question that I'd like to ask you. If you were to remove that aspect, and if there is no sense of requiring that the whistle-blower reasonably believes that what they're reporting is true, is there a possibility therefore that it could lead to some frivolous or perhaps intentionally malicious disclosures? Have you seen that in other jurisdictions?

[Sean Bruyea]

I will answer that question with an anecdote that I told my son this weekend. He asked me what lie I was speaking about this weekend, and I said, “Imagine that you went to a group of people, and you said to them: 'We're worried about some of you committing a crime, so we would like you to write the law. We would like you to assign the chief of police. We would like you to populate the police that will enforce that law. We will give you control over every aspect of evidence. We will give you unlimited legal resources, and we will give you unlimited financial resources to defend yourself, and, should anyone accuse you of committing a crime, then you have the right to persecute that person.'”

My son said to me, “That doesn't sound like a very smart law, and it sounds like the criminals would like it.” I think that's what we have in front of us, a law that basically does not help the whistle-blower, even though in name it's supposed to. We would never build, for instance, a public building for all Canadians that didn't have wheelchair-accessible ramps or wheelchair-accessible bathrooms—specifically supposed to be designed to help people who are truly vulnerable, disabled, fighting the government—and put in a whole bunch of ladders and a whole bunch of walls that they have to climb over when they're not capable of doing so. Bill C-290 starts to take away some of those obstacles.

[Joanna Gualtieri, Retired Lawyer, Department of Foreign Affairs, Trade and Development, As an Individual]

Thank you, Mr. Chair. I've already condensed it, so hopefully we'll be under two minutes.

With Tom's absence last week, I return to provide testimony that Tom and I had collaborated on.

At FAIR, the whistle-blowing charity I founded and where Mr. Hutton came to volunteer, I wrote standards for a good law, adopting Tom's work. Mr. Hutton shared some with you, but never did I foresee the vengeance that would be marshalled against Canadian whistle-blowers, rendering these standards problematic.

In Canada, free speech and due process, fundamental to any whistle-blower, are handicapped. Former Chief Justice Beverley McLachlin put it this way: “[W]e in Canada are more tolerant of state limitation on free expression than are Americans. Similar points can be made about other constitutional rights.” She continued by saying, “[T]he Canadian approach is more nuanced than that of the United States in relation to due process” and, “We are comfortable with ambiguity.”

The nail in the coffin was eloquently warned about by our current Chief Justice Wagner, quoting Balzac: “Laws are spider webs through which the big flies pass and the little ones get caught.” Foundational to culture, these authoritative statements are ominous, especially since the whistle-blower is always the small fly.

You have repeatedly asked what this committee should do. First, take ownership of the crisis. For too long, ordinary Canadians have been doing Parliament's job.

Second, commit to signing an unambiguous public statement affirming full free speech rights for whistle-blowers, and incorporate it in Bill C-290.

Third, identify and bulldoze the due process nuances currently weaponized by our government, courts and tribunals to suppress whistle-blowers' human rights.

Committee has referenced the role of good faith. Please employ your own. Pass C-290, not as an end but as the beginning of a wholesome culture of truth-telling.

Thank you very much.

[Tom Devine, Legal Director, Government Accountability Project]

Thank you for inviting me, and for your schedule flexibility.

The Government Accountability Project, where I work, is a non-profit, non-partisan support organization for whistle-blowers, those who use free speech rights to challenge abuses of power that betray the public trust.

Since I came in 1979, I've worked with over 8,000 whistle-blowers and have been on the front lines for 38 different whistle-blower laws. We're in the middle of a global legal revolution.

When I first came, the United States was the only country in the world where the whistle-blower law had passed—in the previous year, 1978—and now there are 49 nations with national whistle-blower laws and 123 with partial sectoral whistle-blower laws. The reason is that they make a difference. My written testimony has examples of that.

Not all rights are alike, though. The whistle-blower laws are free speech shields against retaliation, because fighting abuses of power means war. If you go into battle with a metal shield, it's dangerous, but you have a fighting chance of living. If you go in with a cardboard shield, no matter how beautifully it's decorated or how heavily it's advertised, you're going to die, and too many whistle-blower laws are the latter.

GAP and the International Bar Association did a global study based on 20 consensus global best practices for what it takes for an effective right. These best practices, I want to emphasize, have been adopted in all four continents. The principles get customized for the legal structures of any given country, but the principles themselves are universal.

In using that study, the results for Canada were that it was complying with one out of 20 consensus best practices. That tied Canada for the weakest whistle-blower law in the world with Lebanon. To me, it's not a cardboard shield here, it's a paper-tissue shield, a law that rubber-stamps retaliation and that any whistle-blower support organization has a duty to warn whistle-blowers against relying on.

Bill C-290 would go a long way towards changing that. I want to give credit where's it's due.

It takes away the motives test for protection, which has put the whistle-blower's reasons on trial instead of the misconduct that's being exposed.

It provides protection from abuse of authority. That's the cornerstone of whistle-blower rights globally, and its absence from Canada's law has been conspicuous. It's well defined as arbitrary and capricious actions that result in favouritism or discrimination.

Bill C-290 protects the whole team that's responsible for an effective whistle-blowing disclosure, rather than just the final messenger. It takes solidarity to survive as a whistle-blower, and the fatal word is isolation. Bill C-290 enables solidarity.

It provides reliable identity protection because the whistle-blower has to approve exposing his or her identity.

It removes the Achilles heel of current law, which is the Public Sector Integrity Commissioner's veto power over access to the tribunal and judicial review.

It improves the dysfunctional 60-day statute of limitation to a functional one year to act on your rights.

With respect to disciplinary accountability, it's setting a new standard for best practices, because it allows the whistle-blower to counterattack against the person who's bullying him or her when they defend themselves.

While these improvements are badly needed and welcome, the law will still not provide credible protection against retaliation; they're an outstanding beachhead, necessary but not sufficient.

My written testimony has about a dozen recommendations for you to consider. I think the highest-priority ones are to make sure the rights can't be cancelled through non-disclosure agreements that are prerequisites for employment, or through agency regulations that can cancel public freedom of expression rights in the law, as in the current statute.

Second is burdens of proof, meaning the rules of the game for how much evidence it takes to win. The European Union and the U.S. both have analogous burdens of proof that should be considered.

Third is temporary relief, so that whistle-blowers can survive during multi-year litigation, and there's an incentive for agencies to settle instead of dragging things out.

Fourth, have no-risk counselling and training, so people understand their rights and can change the culture.

Finally, restore remedies that have been cancelled due to the PSDPA's existence. Some of those remedies were superior.

Mr. Chairman, this is an outstanding beachhead to build on, but it's not sufficient. Bill C-290 would change Canada's rights from a tissue-paper shield to a plastic shield. I urge you to make further amendments so that this will be a metal shield.

[Sean Bruyea, Retired Captain, As an Individual]

Thank you, Chair.

I really want to sincerely thank all of you for inviting me here today. After 17 years of not a single substantive change to the Public Servants Disclosure Protection Act, a highly discriminatory act designed to fail, Bill C-290 is a long-overdue, vital and desperately welcome first-step initiative. I would not remove anything from this bill. However, like those who have come before and will come after me, I recommend some essential additions. You will find them in the four-page brief I have submitted to the committee.

First, please allow my story to underscore and add to your fine work.

As an air force intelligence officer, I served in the first Persian Gulf War. I would return early, broken physically and mentally, lost in a military culture that heavily stigmatizes any injury as a moral weakness. I hid much of my suffering, and therefore received little help. Veterans Affairs Canada, after a litany of bureaucratic deterrents, would recognize my disabilities and provide treatment and care.

As I regained my strength, I could not ignore that this system was abandoning or destroying so many of those it should be helping. I would be the first to speak out against the 2005 money-saving initiative to replace lifelong veterans disability pensions with one-time lump sums.

My calls for due process caught the eye and the ire of senior bureaucrats. The Government of Canada, which I lost much of my well-being and health protecting, sought revenge. My benefits and treatment were threatened or taken away. Allies who sat in Parliament refused to speak with me. Even the Prime Minister's Office told me that I should seek treatment, as if these reprisals were merely a manifestation of combat-related post-traumatic stress disorder.

I fought blindly to defend my family. My wife, an immigrant, was not yet a Canadian citizen. Senior bureaucrats with no medical training planned an ambush, calling me in for a “friendly chat” wherein they would issue an ultimatum that I be placed into the Veterans Affairs clinic for psychiatric care. Should I refuse—senior bureaucrats informed the minister of the outcome of the medical assessment before it had occurred—VAC would refuse to support my mental health providers, knowing full well that removal would likely result in my taking my life.

It took me five years to prove this. By 2010, over 14,000 pages were generated on every aspect of my personal life available to Veterans Affairs Canada, then distorted and placed into briefing notes provided to over 250 senior bureaucrats, my member of Parliament, the parliamentary secretary of the veterans affairs committee and two ministers, and briefings to the Prime Minister's Office. Meanwhile, another lengthy battle with VAC had them finally admit to having over 2.1 million pages resulting from a request I made about the department monitoring my newspaper columns and media appearances.

The evidence is overwhelming. Senior bureaucrats took the gloves off and pursued a two-part plan to remove my benefits and treatment while simultaneously discrediting me and my advocacy work. I would receive one of only two official federal government apologies at the time given to an individual not related to wrongful conviction. The other recipient of the apology was Maher Arar.

I put my life back together yet again and completed a master's in public ethics. Shortly after, in 2017, the government would table other deceptively crafted legislation that claimed to be reinstating lifelong pensions. I spoke out. Minister Seamus O'Regan accused me in a newspaper column of stating “mistruths”. The day after the article's publication, Veterans Affairs, without warning or consultation, terminated care for my son, who was then six years old—except Veterans Affairs had learned much since the 2010 privacy breaches and apology. Officials never put on record the reasons for cancelling the care, or they merely refused to release this information.

Four years of working with the privacy and information commissioners have been disheartening. Meanwhile, my health has spiralled again. My PTSD and depression have the unwelcome bedfellow now of severe anxiety disorder, as my mind and body broke once more, with panic attacks lasting not hours but months. Telephone calls from the case manager who signed the letter ceasing my son's care sent me to the ER on multiple occasions with heart arrhythmia. There were ambulances to our house as my son looked on, and monthly ER visits and hospitalization for household accidents as my mind and body disconnected.

After 30 years of suffering constant prostatitis caused by the Persian Gulf War, I developed stage 3 cancer. I sit here today recovering from that surgery.

A system with dozens of the most senior public service officials attempted to humiliate, disempower and discredit me, and then attacked my son's care when I was already dealing with life-threatening chronic illnesses from my military service, yet I was the one accused of being unreasonable, unstable and untruthful.

It is a wonder that anyone who serves in any capacity for our federal government would risk their job, their health, their reputation and their family to speak out. Still, they selflessly do. I, like them, believe that the corruption and mismanagement that appear in the country we love so dearly.... Such unscrupulous or dangerous behaviour must be called out lest others, or our nation, be harmed.

I strongly support expanding the act to former public servants and contractors. Serving military members and CSE have their deeply flawed internal complaint mechanisms. That leaves military veterans as the only federally employed or formerly employed demographic without protection, yet veterans are deeply vulnerable to the whims of a vengeful bureaucracy.

Over 100,000 veterans and almost 40,000 family members are partially or wholly dependant on Veterans Affairs for their financial security. There are no big box stores for veterans' benefits. There's only Veterans Affairs. This places veterans and their families in a particularly vulnerable situation, especially considering that almost 40,000 veterans are suffering a mental health injury.

Veterans are also uniquely positioned to not just see but experience any potential wrongdoing, not only in the $200 million in contracts awarded annually by Veterans Affairs Canada, but also in the new $0.5-billion contract for rehabilitation. We must, as a nation, take good governance and accountability as seriously as the rest of the developed world.

We must see whistle-blowing not merely as an inherent right to be protected, as we protect freedom of expression and our Charter of Rights and Freedoms. We must see whistle-blowing as the voice of reason, independence and accountability in a system where senior civil servants hold all the cards in consistently avoiding accountability.

Ultimately, we must protect those, especially—

[The Chair, Conservative, Kelly McCauley]

I call this meeting to order.

Welcome to meeting number 64 of the House of Commons Standing Committee on Government Operations and Estimates. Pursuant to the order of reference adopted by the House of Commons 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, we'll be going to about 4:30 p.m. Then we will go in camera to finish off the Governor General study.

We have one witness online and several in person. We have some opening statements. I will just confirm that for our witness online, we have done the proper sound check for our interpreters.

Mr. Bruyea, we'll start with you, after which we'll go to Mr. Devine and then Ms. Brill-Edwards.

Mr. Bruyea, go ahead, please.

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

Is that a recommendation that you would have for Bill C-290, then, to not direct people towards having a judicial review but to having access to the regular court system?

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

Thank you very much.

I really do appreciate the testimony from these two witnesses. Let me just reassure them that of course we are looking at ways to make sure that we could.... There needs to be an update to the whistle-blower protection act. There have to be changes, which are being brought about. We have an opportunity right in front of us to bring forward some important changes that would be connected with Bill C-290.

With that understanding, I'd like to turn to you, gentlemen, to help us try to improve the act and to make sure that we will have something that can work within the confines, of course, of a private member's bill and the limitations that we have in that. We could see this as a first step toward a government bill that would come to improve the act. Nonetheless, let's take advantage of the opportunity that is in front of us here.

You mentioned, Mr. Hutton, the PSIC and its predecessor, the PSIO. I'm keen on this notion. In the private member's bill, there is an intention to create an intermediary body or to transform the role of the tribunal. It would serve as a sort of way station between the Public Sector Integrity Commissioner and of course a very expensive federal court system, which would be very expensive to the whistle-blower if they were to choose to go down that route, which should be their right.

Would creating this tribunal as a way station diminish the role of the PSIC as you see it? Would that then imply, for those being accused of wrongdoing, that there would be an obligation for government to extend some legal services to them so that they could defend themselves in case they were being wrongfully accused of wrongdoing?

[Dr. Ian Bron]

There are already a number of jurisdictions in Canada that offer protection to contractors who come forward with concerns consistent with what's in Bill C-290.

The best practice standard is that you protect any person, any worker, who comes forward with a concern. We've heard some concerns about jurisdictional issues, but to me this is a bit of a red herring. What we're trying to do is regulate the behaviour of federal public servants. They're the ones making the reprisals. They're the ones who are probably central to any wrongdoing that's been disclosed.

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

You're reassuring me.

I'll also reassure you that I support Bill C‑290, not because I'm a troublemaker, but because it's the right thing to do for our citizens and our workers. However, you're demonstrating that it's impossible to know what a person's true intentions are in a disclosure or even in supporting a bill.

Thank you, gentlemen.

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

Currently, as a member of Parliament, am I acting in good faith by supporting the Bill C‑290 or am I seeking glory, perhaps even revenge? Are you able to determine that?

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

A few times today, mention has been made to removing the clause on good faith or good intentions.

I'd like to do a test with you, Mr. Hutton or Mr. Bron. Can you tell why I support Bill C‑290 and whistle-blowers? What are my intentions? Am I acting in good faith or am I looking for glory?

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

Mr. Bron, in your assessment of Bill C-290, you made the observation that the improvements this bill make may “act as a Trojan Horse, luring unwitting whistleblowers with illusory protection.”

I think the last thing we want to do is have the appearance of doing something when, in fact, we're not. We want to address doing nothing, but we don't want to pretend or be fooled into thinking we're doing something when we're not.

You identified the five categories that are needed in order for whistle-blowing protections to be effective. How can we improve this bill right now so that it offers substantive protections to whistle-blowers?