Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence, September 25, 2006 - Afternoon meeting
OTTAWA, Monday, September 25, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 2:05 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, I wish to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. Before going to our witnesses of the afternoon, I shall turn the floor over to a representative from the Liberal Party who wanted to speak about two letter that were tabled at the committee last Thursday.
Senator Day: The letter to which I am referring — it is important for us to stay on top of the developments here — is a letter from the Chief Electoral Officer, Mr. Kingsley. To give some honourable senators who have not been here a bit of background, there was some confusion arising out of t7estimony from Mr. Donison on behalf of the Conservative Party of Canada and Mr. Kingsley, in relation to election expenses information. Mr. Kingsley had indicated that he had not received the necessary documentation in order to make a ruling and Mr. Donison had told us that he had provided all the information.
We received a letter from Mr. Kingsley, dated September 21, in reply to a letter that this committee sent to Mr. Kingsley in regard to this situation. I have the letter in both French and English. It is a matter of record, and all honourable senators have a copy. When I read the English, I could not understand the penultimate, next to the last, paragraph of the English which says that "such information was received today at 12:48." I interpreted this, I guess, hopefully and positively, in meaning that Mr. Kingsley has now received all of the information from the Conservative Party of Canada he needs in order to make his ruling.
Honourable senators will know that we cannot proceed with an interpretation of Bill C-2 and a determination of what, if any amendments, should be made until we know whether the convention expenses would be part of the $1,000 or not part of the $1,000.
In reading the French, I do not find that paragraph — that "such information was received today," so I am left with a translation that is not exact. I still do not know whether the information has, in fact, been received. We can assume that, if the Chief Electoral Officer's office has the information, a ruling will be coming fairly expeditiously and that the deliberations of this committee will not be held up any further.
Hence, I am asking the clerk to contact Mr. Kingsley's office and clarify this issue.
The Chairman: I am looking at the two letters now and I see that there is absolutely no reference to 12:48 in the French copy. I will ask the clerk to follow up and to do just that.
Senator Stratton: Coupled with that letter from the Chief Electoral Officer, which was received Thursday afternoon, I had raised a point of order on Thursday morning about a letter from Steven MacKinnon, executive director of the Liberal Party of Canada, which I realized, when I was about to read it, that no one yet had the opportunity to peruse it, so we left it.
Senator Milne: I read it into the record on Thursday.
Senator Stratton: I realize that. I think that, while it has been read into the record, as part of the answers to our questions, we do need to hear from Mr. MacKinnon and have him put on the record what he said and what he promised to do at this committee and that he would respond in writing to all questions that we had asked.
He has now come with this letter dated September 21 that he will not do so. I do not see how we can divorce one from the other, without examining both sides of this issue, including getting an appropriate response from Mr. MacKinnon.
Senator Day: Mr. Chairman, my understanding of Mr. MacKinnon's letter was that at the end of his testimony he said he was working on some other proposed amendments that may be of help to this committee and that he needed some legal advice in relation to those. In the letter, he indicated that upon review he had nothing further to add.
The Chairman: That was not my understanding, Senator Day.
Senator Day: Could we have a list of outstanding questions?
The Chairman: I do not have the transcript here, but I do recall that on two occasions I asked Mr. MacKinnon if he would file with this committee a copy of the brief and the written materials that had been prepared and he gave an undertaking that he would. My recollection of what he did say — again, I have not looked at the transcript — is that it is now in the hands of their lawyers and when he got it back he would table it with us — that, yes, he would be tabling a written response.
That is my recollection, without looking at the actual transcript, and that is what the committee is entitled to rely upon — that is, his undertaking that he would file it when it came back from the lawyers.
Senator Day: You and I are not in disagreement. This was a document with some recommendations that he was working on.
The Chairman: We are waiting for that document.
Senator Day: He said, in reviewing the transcript, that all of those points he intended to make in the submission are in the transcript and that they came out during the hearing.
The Chairman: That was not his undertaking, however, to the committee.
Senator Stratton: Sauce for the goose is sauce for the gander.
Senator Day: The record will speak for itself. If we could have the clerk draw together for us what Mr. McKinnon has undertaken to produce, we can deal with that.
The Chairman: I am speaking from memory, but I know on two occasions I specifically asked him to give an undertaking to file his brief, and he undertook to do that. I should like to review our exchange, however, so that I will know for sure.
Senator Day: That is a wise thing to do. My recollection is a little different from yours, but very close. Do we have an agreement that there will be a follow-up letter to Mr. Kingsley?
The Chairman: I gave that undertaking.
Senator Day: I did not hear that as an undertaking, Mr. Chairman. I have difficulty hearing undertakings.
The Chairman: Senator Day, I said earlier, and the transcript will show, that I asked the clerk to write a letter and follow up because I had said that when I looked at the French and the English there was absolutely no reference in the French to the 12:48 time period and that we were entitled to an explanation, and I asked the clerk to do it.
Senator Day: Thank you, Mr. Chairman.
The Chairman: Honourable senators, I should now like to move on to the business at hand.
This is our twenty-first meeting in relation to Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the federal accountability bill.
As senators, our witnesses and members of the public, both here in the room and across Canada on television know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of proposed legislation brought before Parliament in recent years. The committee is giving the bill the extensive, careful and detailed study that it deserves. By the end of today, we will have heard from 100 witnesses over a period of almost 70 hours of meetings.
This week, we are considering various aspects of the bill, including whistle-blowing, audit powers and procurement. To begin our work this afternoon we have with us representatives of two major labour organizations.
We also welcome before us Mr. Éric Lévesque, who is Legal Counsel for the Confédération des syndicats nationaux.
Joining him is the United Steelworkers, represented by Dennis Deveau and Roger Falconer.
The committee thanks you for your presence here. I now hand the floor over to you, after which we will have a question period and a discussion which will be most useful to committee members.
Welcome, gentlemen. We look forward to your presentation, following which we will engage in a question and answer period. I do not know which of you will present first, but I leave it to you to decide that.
Dennis Deveau, Legislative Director, United Steelworkers: We flipped a coin and I lost, or won, I'm not sure.
On behalf of the United Steelworkers, thank you very much for inviting us to participate. As you can see from the brief, we call ourselves the United Steelworkers now because the number of industries we represent has gotten a lot larger in the last few years. We represent over 280,000 workers in Canada, which makes us the largest private-sector union in Canada at the present time.
A number of our members work in the federal jurisdiction, particularly in banking institutions, security, transportation, those particular areas, and they have great concern over some of the aspects of the accountability bill. Specifically, we wish to deal with three particular areas, primarily over the question of whistle-blowing. Our legal department made a presentation to the House of Commons committee on some of the other aspects of the bill, but today we should like to restrict ourselves to that particular issue.
There are three particular issues we want to deal with. We would like to see the application of the proposed act broadened to protect a larger group of workers and the scope of what is protected disclosure expanded. That is one of the areas we want to speak to.
The discretion of the commissioner to limit access to the tribunal should be curtailed. The protection of employees against reprisal should be strengthened through the introduction of reverse onus and justice and dignity clauses. We want to deal with those particular matters.
Dealing specifically with the first issue, the bill recognizes that contractors and employees of contractors are in a position to learn what wrongdoing is as defined by the bill and must deal with it and it forbids cancelling of contracts with contractors for disclosure they or their employees may have made. The problem with this particular issue is that, although they are in a position to disclose what they know, they do not have protection against reprisals.
We can use the example of a situation that we have been faced with. We represent, as part of our membership, airport security screeners. If some of you recall, a few months ago one of our screeners from here in Ottawa made a public disclosure — as a matter of fact, it was on CTV or CBC, I cannot remember exactly which one — and to date he is not back to work. I cannot get into details, because I do not know much of them, our legal department deals with those, but I am dealing generally with the whole question. He was able to talk about some of the things that were happening with security at the airport, but through his employer and through Transport Canada and CATSA, he was basically taken out of employment — for various reasons.
Although he viewed it as his responsibility to come forward with these things, the whole question of reprisals is a concern of ours. In this particular case, it is a contractor that is a security guard company; you have now a third party involved in that. Those particular things have to be dealt with through this particular bill.
We also want to look at the question of broadening the definition of protected disclosures. We question the necessity of the requirement that a danger be substantial or specific before a disclosure is protected. We want to make sure that an employee is able to make an internal disclosure without fear of reprisal, and under the current provisions of the bill, that protection is not there.
The second aspect of our submission is that the discretion of the commissioner should be limited. In our opinion, the commissioner has a much broader discretion than we think he or she should have, and we submit that the commissioner's discretion to refuse to advance complaints should be limited. An appeal mechanism should be put in place so that, if a commissioner decides to refuse to hear a complaint, there is a tribunal able to deal with that particular issue.
Any protection against reprisals needs to be realistic and effective if the goal is to encourage disclosure for wrongdoing, as in this particular case. We are of the view that the whole question of reverse onus is an appropriate way to deal with that particular situation. Perhaps I can deal with that in the questions.
The Chairman: Thank you very much for that. Mr. Lévesque, please.
Éric Lévesque, Counsel, Confédération des syndicats nationaux: Mr. Chairman, the Confédération des syndicats nationaux wishes to thank you for allowing us to submit to you some observations and comments we have with regard to Bill C-2.
We did the same thing when we appeared on June 30 last before the legislative committee of the House of Commons and we plan on more or less repeating the same things here today.
We will however be concentrating on two aspects: the protection granted to whistle-blowers, as well as a few observations relating to the provisions regarding access to information and the changes that the Bill would make.
The Confédération des syndicats nationaux represents close to 300,000 workers from various sectors that are grouped under nine federations. Even though the Confédération is mainly present in Quebec, it also represents some members that come under the federal sphere, namely in the areas of telecommunications — television and radio — transport and correctional services.
Given our presence here, people are clearly counting on us to question and comment on certain aspects of Bill C-2, but I will be relatively brief given the time that was granted us in order to prepare for our appearance today.
First of all, with regard to whistle-blower protection, we are for the most part in agreement with the statements made by Mr. Deveau, in particular with regard to the reversal of the burden of proof. We will reserve our comments pertaining to the broadening of the application of the act to include subcontractors, given that these aspects tie in to some extent with problems or issues relating to loyalty towards one's employer, which does not come under the present law.
We do however intend to make the following comments with regard to whistle-blowing and whistle-blower protection. This part of the act must truly provide protection and leave aside, as we suggested on June 30, any form of allowance or compensation for whistle-blowing. There must be protection because one's job could be jeopardized and there also must be assurances against any reprisals, but we do not believe that encouraging whistle-blowing through some compensation mechanism would be a desirable thing to do.
The second aspect relates to the changes proposed to the access to information provisions. During our appearance before the House of Commons' legislative committee, we underscored the fact that the Bill aimed at more broadly covering these provisions. Indeed, it adds a certain number of organizations to the list of those covered as well as exceptions with regard to the access to the very information or documents aimed at in the first instance. There is there — which we insisted upon at the time — a serious paradox.
We were in agreement, as we still are today, because it is important to provide greater flexibility and broaden these provisions so as to include a greater number of organizations, but exceptions or restrictions to accessing this information and these documents should be avoided.
Senator Cowan: You said you would like to see the application of the proposed act broadened to protect a larger group of workers, are you referring to both in the public sector and in the private sector? Is that your position? Dr. Keyserlingk was here this morning, and he said that in order to be sure that you were getting as much accurate information as possible and trying to afford equal protection to all whistle-blowers you needed to that. Have you seen his presentation? Perhaps you might have a look at that and then let us have the benefit of your opinion on his views. He felt that protection had to be extended to those in the private sector, because, in many cases, those were the people who really had the information that was required for the commissioner to make the decision.
Mr. Deveau: As we pointed out, there are a lot of contractors — and they are usually provided by private companies. That is an important aspect that this bill has not looked at in any detail.
Senator Cowan: Would you expand a bit on your point that you would like to see amendments made to the bill that would limit the discretion of the commissioner to limit access to the tribunal? I think you said there needed to be some appeal from such a refusal. My understanding of the evidence that we had today was that there is an appeal to the Federal Court in such a circumstance. Is that correct? Is that sufficient or is that not sufficient?
Mr. Deveau: First, I do not know if there is an appeal to the Federal Court. I cannot tell you that.
Mr. Lévesque: I am looking for the clause, but I believe that that is provided for.
Senator Cowan: It was my understanding of his evidence that, in the event that the commissioner refused to refer a matter to the tribunal, that refusal was subject to review by the Federal Court.
Mr. Deveau: In the context of dealing with appeals in front of the Canadian Labour Relations Board, and various things like that, there is an appeal procedure in addition to being able to appeal to the Federal Court. In this particular case — if you are correct about this, and I am not sure with respect to the question of the Federal Court — that leaves one avenue, which is a legal avenue, in the sense that lawyers will be involved all the time. However, there is no appeal procedure for that individual to be able to deal with it, aside from going to a Federal Court.
Senator Cowan: Your preference would be to limit the ability of the commissioner to refuse to refer?
Mr. Deveau: Yes.
Senator Cowan: The body that is constituted under this legislation is different from the one that has up until now had jurisdiction to deal with these kinds of complaints. Do you see the need for a separate tribunal composed of judges? Do you think the existing tribunal is sufficient?
Roger Falconer, Staff National Office, United Steelworkers: The mechanism that is in place today for workers to appeal for some justice through the Canada Industrial Relations Board — CIRB — is tested; it is tried and true. It is a mistake to think that having another tribunal will, somehow, resolve the issue.
The issue with us is this: If there is a problem with the tribunal, it is about the resources that are allocated to the CIRB as it is presently constituted to deal with another issue that will be put before it. If proper resources are given to the board, we have no doubt that the tribunal that is envisioned by this legislation would not be necessary because the CIRB could do its job properly.
Senator Cowan: It is a question of resources and skill?
Mr. Falconer: Absolutely.
Senator Cowan: I will leave it at that on the first round.
Senator Joyal: Mr. Lévesque, the whistle-blower compensation question, as you are aware, was amended in the House of Commons. It seems that this matter has for the time being been resolved.
Mr. Lévesque: The presentation was made.
Senator Joyal: I must admit to you that no one has asked us this question anew — at least not today.
Mr. Lévesque: We wish to ensure that it will not come back.
Senator Joyal: We will be hearing other witnesses later today, so we cannot presume as to what the future might bring, but I wished to mention that.
This morning, we heard the director of whistle-blower protection and his presentation was similar to the recommendation made to us by the Canadian Bar Association in a brief that we have not yet studied in full but which was brought to our attention. The effect of this recommendation would be to broaden the protection provided for in the act.
Are you aware of the Bar Association's brief and of its position in this regard?
Mr. Lévesque: No, much to my regret.
Senator Joyal: The other aspect of the question relates to the reversal of the burden of proof.
Senator Joyal: Mr. Deveau alluded to that in his presentation, but let us open it up for further questions.
Could you explain to Committee members your request that the burden of proof be reversed in order to better protect employees who take the initiative to whistle-blow?
Mr. Lévesque: If I understood Mr. Deveau correctly, this type of onus of proof reversal would be along the same lines as that which exists elsewhere in the area of labour relations. I am referring here in particular to the Canada Labour Code and the Quebec Code. This protection is granted against reprisals or dismissal for union activities. The party who is a victim of reprisals only has to establish certain facts in order to benefit from a presumption — which could be the case here — of having denounced an act and of having at the same time been targeted by reprisals, and to demonstrate that, for purposes of the act, he or she is covered by this act. As soon as those facts are established, the individual would benefit from the presumption that he or she was the victim of reprisals or discrimination, was suspended or even dismissed for having exercised the mechanism provided for by the act, or attempted to denounce or denounced an act of wrongdoing under the meaning of the act. This would trigger a burden of proof reversal, which would clearly simplify things for the person protected under the act, coming back to the very purpose of the act in the first place.
If the idea is to protect whistle-blowers and to ensure that wrongdoing be brought to light, then let us go all the way to a reversal of the onus of proof, such as it exists under other laws, be they provincial or federal. We would thus all be able to ensure that the aims and principles put forward in the act, and which are laudable, are respected and applied by individuals denouncing wrongdoing.
Senator Joyal: Mr. Deveau, would you like to add anything to the explanation Mr. Lévesque has just provided?
Mr. Deveau: In our briefs, we offer support for The Professional Institute of the Public Service of Canada's proposed amendment to section 16 to include a stipulation that for a period of five years following a disclosure, any negative actions taken or threatened against an employee who has acted to disclose wrongdoing would be presumed to be a reprisal. We believe that there should be a time period.
Senator Joyal: The other points the director presented to us this morning dealt with the scope of reprisals. As you know, the original legislation was limited to disciplinary action or termination of employment. Of course, that is easy to verify. If a disciplinary action is taken, you receive a notice. If your employment is terminated, you will receive another form of notice.
There are many ways for a superior to take a reprisal. Many scenarios come to mind, and those are much more difficult to prove. For example, to make life unbearable for a person is not a disciplinary action per se. It is not the object of a formal reprimand or notification, but it might create for an employee a context in which the person feels totally aggrieved. I am surprised that neither of you seem to have paid attention to that aspect of reality in your presentations.
Mr. Deveau: As I mentioned, one of the proposals put forward talked about a five-year period with regard to any negative actions taken or threats against an employee. I think that would cover what you just mentioned, for instance a demotion or a lack of promotion, which is more than a question of discipline and discharge.
Senator Joyal: I am thinking of many examples, such as a person involved in a file who later learns they are no longer involved, or a person who in practical terms is shelved within his or her working environment.
I do not want to start listing all of the scenarios because I will never cover everything. However, it seems to me that this is a reality, and it is important to consider whether the act sufficiently covers a person, and not only in the easy context of termination of work or formal disciplinary action.
Mr. Falconer: That is exactly why the union's position is that there should be reverse onus. You put the onus on the employer or the person doing the persecuting to prove why the persecution is not because of the whistle-blowing but because of something else. Documenting and proving those issues are much more difficult to accomplish. It discourages the frivolous attempts by the employer to do the types of actions you are talking about. The other actions would be much more difficult to prove, and they would be under much closer scrutiny.
We believe that the putting the principle of reverse onus into this bill would provide a mechanism in the long term to protect against the actions you mentioned.
Senator Joyal: In the case of reverse onus and with respect to the Canada Labour Code — I do not have the act in front of me.
Mr. Lévesque, could you explain to us the contexts in which the reversed onus of proof system applies in labour relations at the federal level?
Mr. Lévesque: I have neither the Canada Labour Code, nor section 94.3, nor the Quebec Code. However, in light of what you are saying and of the examples described, it appears important to me to explain the following. It is precisely for this reason, as Mr. Falconer stated, that the Canada Labour Code — and more particularly the Quebec Code, where the provision is clearer with regard to the matter of presumption — and a certain number of discrete disciplinary measures or acts, which are at some times quite vicious, prevent an individual from providing proof of the reason, in other words that related to union activities, for which he or she was dismissed or suspended or was the victim of reprisals in order to deprive him or her of the legitimate exercise of his or her rights as recognized in the codes in question.
Consequently, the idea of a presumption in this context fits in with these concerns and difficulties. There could be all kinds of cases and situations that would be difficult to circumscribe and that could prevent a person from truly benefiting from the protection the legislator intends to provide.
These mechanisms that exist in the area of labour relations are tested and effective. They have allowed a good number of workers to benefit from protection and to obtain redress of a grievance.
This is in the case of a person who takes the initiative of asserting his or her rights as a union member. I understand that section 94.3 allows an individual to invoke burden of proof reversal. This is the case for legitimate union activities. Is this the way in which clause 94 must be interpreted?
Mr. Lévesque: The union activity we are talking about here is the object of much case law. There are all kinds of union activities. Take the simple signing of a membership card or one's attendance at a convention. The fact of being a member triggers in part that protection granted under section 94.3 or clauses 15 and 17 of the Quebec Labour Code.
It is disarmingly easy to prove that one should benefit from this presumption, and this is for the very reason that the idea is to ensure, in the area of labour relations, that it is up to the employer to demonstrate that it is not for this reason — for the exercise of legitimate activities — but for a completely different reason.
It would suffice to apply the same principle here, in such a way that the individual would not be targeted for having participated in a given activity or attempted to blow the whistle on some wrongdoing, but for some completely different reason. It would be up to the employer to provide proof in the same way. This is a tried and true system.
Senator Joyal: The second point, Mr. Deveau, is an important one, that the discretion of the commissioner to limit access to the tribunal should be curtailed.
The explanation you give in your brief does not expand more on what I call the rule of law. In other words, to separate the two positions of the commissioner seems to me to be an important principle. Could you explain more about your understanding of what would happen with the discretion given to the commissioner to limit access to the tribunal? If I understand, you would ask for the decision of the commissioner to be reviewable by a jurisdiction other than the tribunal. Am I right?
Mr. Deveau: I wish we had someone from our legal department to discuss that particular question with you.
Senator Joyal: It is on the fourth page of your brief, but you did not go into detail. It is an important point, especially when you say that the bill limits the right of employees to seek redress for reprisal through other forums and that in view of this limitation, United Steelworkers submits that the commissioner's discretion to refuse to advance complaints should be limited.
A very important legal principle is at stake there. You are deprived from appealing yet there seems to be discretion to refuse to receive complaints; thus, there is a need for an appeal level such that a person has a capacity to have his or her review pursued if the person is convinced that he or she is right.
Mr. Falconer: Yes. We are saying that if the commissioner is to act as judge and jury, we want the opportunity as Canadians to be able to appeal his decision somewhere, and not just to the Federal Court, because the Federal Court is a lengthy and costly process. We are talking about workers who have blown the whistle on some issue important to the Canadian public. To go the route proposed in the bill will actually deter whistle-blowing. If there is going to be a tribunal and a commissioner, then the powers of that commissioner should be spelled out in a way that allows for an appeal process if someone thinks they have a case to make and the commissioner is not listening. Some third party should hear the commissioner's reasons for refusing and hear the party's reasons for proceeding and make a decision. That would at least address our problem of having no outlet if the commissioner decides not to hear a complaint.
Senator Joyal: As you said, the Federal Court route is procedurally heavy, costly and lengthy, so we understand the appeal should be an administrative appeal. Where in the system do you see the appeal's being launched?
Mr. Falconer: Frankly, I cannot answer that question. I suspect you could take the Canada Industrial Relations Regulations as a model; there are mechanisms in there you can use if you are not satisfied with the board's decision. They include going to court, of course, but I would not recommend that.
Senator Joyal: Mr. Lévesque, would you have any comments to add to the good answer provided by Mr. Falconer?
Mr. Lévesque: Perhaps a further response concerning the issue of an administrative tribunal such as the Canada Industrial Relations Board; a tribunal such as that or the commission could be granted jurisdiction to hear complaints of this nature, in which case we would live with the consequences of the commission's decisions, which are final and without appeal, but which could be the object of judicial review by the Federal Court of Appeal, which is a completely different mechanism than that mentioned by Mr. Falconer. It is not unthinkable that jurisdiction in this area be fully placed in the hands of such a tribunal.
Senator Joyal: I would also invoke the opposite reasoning: supposing that an employee decides to abuse the complaint or whistle-blowing mechanism — that can happen, the world unfortunately not being perfect —, in this context, what would a fair and objective reaction on the part of the system be for the person involved but also for the system?
As you know, everyone is entitled to a certain presumption of innocence. If an individual blows the whistle here, there and everywhere, he or she to a certain extent harms the reputation and the very nature of the responsibilities of a supervisor or of an organization.
In divising an effective system, one must take into account both possible abuses and the rights of the individual in a given political context. We have seen cases in the past, and I will not mention names, but we all have examples in our heads.
In this context, do you believe that the proposed system takes into account the balance that must exist between the two?
Mr. Lévesque: With all due respect, and perhaps with a word of warning, I wish to underscore that I am personally very sensitive to any type of abuse. If there is abuse, there must be corrective measures and redress. This, to my mind, follows naturally.
However, the bill's aim here is very different. Its main purpose is to allow people to blow the whistle on wrongdoing. To this end, the idea is to grant protection to the whistle-blower. This, I believe, is what is involved here, today, with all of the consequences that this entails.
Will there be deficiencies in the system? Is there a fair balance in the bill? It is my belief that these questions should be dealt with later, given that what matters here is the protection of those persons who will whistle-blow on wrongdoing. And it will then be up to the appropriate tribunals to judge after the fact if there was abuse or not.
Will it be a loyalty problem? Will it be a defamation problem or some other wrongful act? I do not believe that this matter should be dealt with within the very act that values whistle-blowing on wrongdoing and protection for whistle-blowers.
Senator Milne: Following that last question of Senator Joyal, are you aware that the bill imposes a 60-day limitation period within which a complaint must be filed with the commissioner by a public servant alleging that there are reasonable grounds for believing that a reprisal has been taken against him or her? The complaint must be filed no later than 60 days after he or she should reasonably have been aware of the reprisal.
It seems to me that 60 days is a short period of time. For the electoral finances offences, it is ten years and another five years before the commissioner of elections has to lay any complaint. That is a total of 15 years. What do you think about that?
Mr. Lévesque: I am not familiar with the deadlines you are referring to with regard to the Elections Act. A 60-day time frame might seem short, but the Canada Labour Code does provide for such timeframes, although they are more generally of 90 days.
There is a fair balance between the protection granted an individual so as to allow him or her to react within a reasonable timeframe and that afforded to the other party, in the case of an eventual trial, for retaining his or her evidence and the means to defend him or herself down the road.
I would be very pleased to learn that an individual would have a timeframe of one or two years, but I believe that it is possible to manage with a 60- or 90-day window.
Mr. Falconer: This issue goes to the core of how confident people will feel about this piece of legislation. If people feel secure that they can come forward with some certainty that their job is protected, that they will not be penalized or harassed, that they will not be subject to discipline, then 60 days is fine. If I find out next week that I am being disciplined somehow, I will want to take action sooner rather than later to resolve that issue.
In most collective agreements — in the Steelworkers, the Confederation of National Trade Unions (CNTU) and others — it is not unusual to have a much shorter period of time within which people must file a grievance; it is usually less than 30 days. It is not about the issues but about people feeling comfortable with the process and with being able to come forward. If this bill meets that objective, then 60 days is not a problem.
Senator Milne: That is good to hear.
Mr. Deveau: In our brief we talked about a justice and dignity clause, so that in a situation where someone is disciplined, he or she remains at work until the tribunal makes a decision.
The 60-day period would, in that sense, be appropriate. First of all, it would oblige the tribunal to act. If you made the period six months or a year and had a justice and dignity clause, you would have employees saying they had a year.
Senator Milne: Thank you.
You mentioned in your brief, Mr. Deveau, that you represent many outside contract workers, such as airport security screeners.
Some of the witnesses and senators expressed concern this morning that perhaps opening up this bill to outside contractual employees would lead to a flood of complaints with the commissioner and that he would be inundated and would not be able to do anything, certainly not within 60 days.
Perhaps everyone who loses a contract or a job competition would complain and would appeal under one pretext or another. Do you think that would happen as a result of opening up this bill to outside contractual employees who are working for a company that has a contract with the government?
Mr. Deveau: It depends on how the proposed legislation would deal with the kinds of complaints that can come forward. There is no question that airport screeners, who do work directly related to the security of airports, which is under Transport Canada, should be considered in this legislation. I do not see the matter of whether or not a contractor gets a government job as being under the proposed accountability act.
Senator Milne: How would you suggest broadening this bill to cover contractors, then? Do you have any specific suggestions along that line?
Mr. Falconer: We are talking about anyone who has a contract with the federal government. Mr. Deveau is talking about the airports, which are structurally under Transport Canada and Canadian Air Transport Security Authority. CATSA, in turn, has subcontracted the work to private security firms. We believe that employees of those private security firms, who are performing government work at those sites, should be entitled to the protection of this bill. Any subcontractor that falls within the category of being employed by the federal government should be covered by the bill because they are working in an industry that the federal government regulates. That is a modest expansion. Some people in the labour movement think that everyone should be covered by whistle-blowing, but that is another discussion for another day.
Senator Milne: And for another forum.
Mr. Falconer: Exactly.
Senator Milne: Mr. Deveau, how specifically would you broaden the definition of "protective disclosures" under this bill? Do you have a specific suggestion for us?
Mr. Deveau: Perhaps I can get our legal department to submit something in writing.
Senator Milne: That would help quite a bit.
The Chairman: Can you have that sent to the clerk of the committee here?
Mr. Deveau: Yes, we will.
Senator Milne: Could you also send some wording for your suggestion about reverse onus?
Mr. Deveau: Sure.
Senator Andreychuk: I want to pick up on the reverse onus. If I understand, you are after reverse onus because you think that when someone comes forward on a whistle-blowing complaint and then does not get the opportunity to continue in their workplace in the normal manner, it is up to the employers to prove that they are not discriminating against that employee.
It is a form of discrimination to retaliate against a person who comes forward legitimately under this bill. We are trying to deal with other categories of discrimination as well, be they gender, race, religion or other biases. How would reverse onus in this particular discrimination or retaliation case be different from all the other categories of discrimination?
Mr. Falconer: We are talking about an employment relationship that is based on power. The employer has all the power and the employee has none, and that is what discourages people from blowing the whistle. We believe that if we can balance that power equation, it will work, and that is the purpose of this legislation.
Reverse onus is so important because it is not good enough in any court for an employee to come forward and say, "I have been discriminated against," or "I have been discharged for this reason." The employee has no proof, only the belief that the reason he has been disciplined, harassed or terminated is that he spoke up. That is his belief, but he has no proof.
Under reverse onus, the employer has all the proof and all the justification for terminating an employee for just cause. Our contracts contain a clause that says that people cannot be terminated without just cause, and we are saying exactly the same thing in this instance. It says that if people are disciplined, terminated or harassed, it is up to the employer to prove that they did not do those these things because the person blew the whistle on an issue.
You are absolutely correct that there is human rights legislation in all the provinces and federal legislation that deals with discrimination. However, it is not right that someone can be fired without the opportunity to present evidence in open court on what took place. It is important to have reverse onus in this legislation to clarify that employers have the right to hire, fire, transfer, discipline, et cetera, subject, however, to proving that their actions were for just cause rather than simply because the employee blew the whistle.
That is why it is so different from other forms of discrimination that can go before human rights boards. Human rights commissions deal with many issues that take time and much expertise. We believe that people will not blow the whistle if there is not a mechanism to guarantee their protection. Reverse onus protects those people who blow the whistle when it is necessary
Senator Andreychuk: Going to the Federal Court is a long process. Going to human rights commissions is a long process as well.
You seem to be saying that discrimination by retaliation is unique, that although the others have to go through long processes, albeit different processes, that is justifiable. You want to place a higher onus on the employer and place a higher value on coming forward than on all other types of discrimination.
Mr. Falconer: To be perfectly clear, the United Steelworkers do not think that any discrimination should be tolerated. I know that boards, panels and human rights commissions take a long time, and I do not think that is a good thing. If there is some way to prevent that from happening, I am in favour of it.
However, with whistle-blowing we are asking people to step up and do something they have never done before; we are asking them to put their heads on the chopping block. We are trying to suggest to you ways in which we can prevent the guillotine from coming down.
Employers will not necessarily follow along just because a piece of legislation says these things. As some senators have mentioned, some employers may try to circumvent the legislation even if we get the changes we are asking for.
I am not diminishing other types of discrimination at all. If there is a way we can help the Canadian Human Rights Commission do its job more thoroughly and quickly, someone should suggest that to the government. I am here to talk about whistle-blowing.
The Chairman: You are talking to the right senator now because Senator Andreychuk is the chairman of the Senate Human Rights Committee.
Senator Andreychuk: Can any one of you give me your background on whistle-blowing? It is a new area. It has been discussed. We have encouraged people to come forward. In the past, we have said that wrongdoing is related to the Criminal Code, under which everyone has a responsibility to come forward in certain cases.
Is the issue of whistle-blowing prevalent in legislation, policies or practices of unions or will this be the bellwether case? Does your union have whistle-blowing provisions in your offices, or will this be new for you as well?
Mr. Lévesque: As far as I am concerned, yes. The first time that I read the bill, I had some hesitation because it seemed to me that it was more interested in the problem of loyalty towards one's employer than in whistle-blowing in cases of wrongdoing. In that sense, yes, this is all new to me. I have never before had to deal with this kind of problem.
That being said, after careful reading of the first and second versions of the bill, it appeared clear to me that as far as the federal sphere is concerned, there should be a specific channel for whistle-blowing and special protection granted to those — to borrow the terms used by Mr. Falconer — who decide to put their head on the chopping block.
Senator Andreychuk: On page 171 of the bill, under "Rights of action," it says:
Nothing in this act affects any right of action that a public servant may otherwise have in relation to any act or omission giving rise to a dispute that does not relate to his or her terms or conditions of employment.
Mr. Chairman, have you received any interpretation of that? If not, perhaps we could look into it.
The Chairman: Proposed new section 51.3 of the Public Servants Disclosure Protection Act was raised this morning by Senator Day.
Senator Andreychuk: Yes. Proposed new subsection 51.2 (2) is an interesting one. I will leave that to another day.
Senator Campbell: I would like to get back to the commissioner as the investigator and gatekeeper. Basically you are looking for a judicial review of the commissioner's decision. Perhaps the tribunal itself could be in that position.
I have been involved only in a provincial tribunal. When I as coroner made a decision that someone did not like, that person could ask for a judicial review before the Supreme Court. It was a fairly lengthy process. In this case there is one place for everyone to go — the Federal Court. For this proposed legislation, would it be possible to have the review done by the tribunal? Perhaps the commissioner should be an investigator. The tribunal is the gatekeeper. They make the decision on whether they go forward or not. If you do not like that, then the Federal Court is your next level of recourse.
It seems like the commissioner is in the middle of all this. The commissioner investigates. It goes to the tribunal. The tribunal says yes or no. If one party or the other does not like the tribunal's decision, it can move on to the Federal Court. Perhaps the separation of the two roles would take care of this problem.
Mr. Falconer: As Mr. Deveau has already said, I do not think we are really quite sure what will fill the bill. We know that with the two jobs combined in one it does not seem to work. Justice is denied if you do not get an opportunity to present to the tribunal. Senator Campbell, I certainly think that may solve the problem.
Senator Campbell: The difficulty here is that you are asking someone to wear two hats. First, they wear one hat. Then they take it off and make a decision on what they just investigated. That seems patently unfair.
Mr. Falconer: When we looked at what we wanted to encompass in changes to the act, it was done in tandem.
Turning to the topic of judicial review, the old arbitration system takes some time, as does going to the Supreme Court or the Federal Court.
Perhaps the justice and dignity component could be instituted. If you are disciplined in some way, you are retained in a position and you lose no compensation while your dispute with the employer happens. If the reasons you have been disciplined are upheld, then the discipline is carried through. If the reasons for it are withdrawn, then you carry on with your job. However, if it takes six months, the person is still employed for six months while the process unfolds.
Such a measure exists in a few collective agreements. Where people are fired, they are kept on in some capacity, as long as there is no imminent danger that they will sabotage the job or hurt someone, if there is some conflict between employees.
Your explanation regarding the tribunal makes a lot of sense. In the event that we go to some kind of judicial review, I do not think that would be good enough. You have to add the component that makes it so that the person is whole while you do that last part.
Senator Campbell: I do not disagree with what you are saying. Sometimes when police officers are accused of doing something they are taken off active duty and put on a desk job. They stay there until the whole thing is resolved.
I understand the justice and dignity point. I want a system that acts fairly and quickly. I have no difficulty with the person's remaining on the job while the process unfolds, except for the situations you set out.
There has to be a separation of the roles of judge and investigator. Otherwise, the investigator can say, "This is my finding. As a judge, it will not go any further."
Mr. Falconer: I agree.
The Chairman: Mr. Falconer, I am sure you are aware of Bill C-11, to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings. The bill was assented to on November 22, 2005.
I refer to clause 21.1(6) of Bill C-11, which states:
The public servant may be temporarily assigned duties in another portion of the public sector if both the chief executive of that other portion and the public servant consent to the assignment and the duties are comparable to the public servant's normal duties. The assignment is deemed not to be a reprisal if the public servant's consent is given.
That protection is also built in.
Mr. Falconer: If they agree.
The Chairman: The public servant has to consent.
Senator Day: There are a lot of ifs in that one.
We appreciate your being here to provide a perspective from the unions. First, I would like to lay the groundwork by referring to what our chairman just said. A piece of legislation was passed in November of last year. We often refer to it as Bill C-11. However, it was never proclaimed. It has never been in operation. Nobody has any practical experience of how it works. We are now talking about amendments to that piece of legislation.
Have you had an opportunity to study the previous legislation or participate in any way in proposed changes?
Mr. Lévesque: At the time, I was participating on behalf of the Fédération nationale des communications, of the Fédération de la CSN as well as of one of the main unions, the Syndicat des communications de Radio-Canada. The main concern at the time with regard to this bill related to obtaining an exception for journalism-related work. A correction was made.
For the rest, the remarks made were essentially the same, in other words that protection be granted to persons disclosing wrongdoing and that the burden of proof be reversed — as is being suggested here — similar to what is provided for in other labour relations legislation — which I partially defended earlier. I added to that broader protection than simply reverse onus, by suggesting a presumption that the measures in question were taken because the person blew the whistle, for example. My experience stops there.
Senator Day: Have you, for example, studied clause 24 dealing with the commissioner's power to reject a complaint?
Mr. Lévesque: No, but you have just reminded me of a kind of irregularity or paradox contained in the first bill, where there was this uncomfortable situation with the commissioner being both judge and jury in the case of a person compelled to disclose an act committed by his or her immediate superior, and that was even worse than what we presently have with this bill. Corrections have been made between Bill C-11 and the one you are studying now.
I am sensitive to the judge and defendant problem, but it was even more striking with the previous bill.
Mr. Falconer: I have no information on that.
Senator Day: We were talking about the cost of going to Federal Court for a judicial review should the public service integrity commissioner decide not to proceed. Clause 203 proposes changing section 24 of the Public Servants Disclosure Protection Act. On page 157, proposed section 24 (1) states:
The Commissioner may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation —
Why are the changes proposed? We do not have that in the previous application, Bill C-11, wherein proposed section 24 outlines various grounds. As well, you have expressed concern about the basis upon which the commissioner could exercise the right to refuse an investigation, if "the subject-matter of the disclosure is not sufficiently important," or if "dealing with the disclosure would serve no useful purpose." That is interesting wording in a piece of proposed legislation to explain why the commissioner might not proceed with an investigation.
Mr. Falconer: That is exactly why we hold the position that the commissioner should have certain rights subject to an overseer. There has to be some oversight. If I think something is important and I come forward, I would expect to be protected. I would not expect someone to tell me it is a frivolous complaint and to simply go away. I would expect the government to take it up and protect me because I have put my head on the chopping block. If the commissioner were to deem my complaint frivolous, then I would find myself unprotected. As an employee, I would be prevented from ever coming forward in the future.
Senator Day: You talked about the use of the words "justice and dignity," which I would ask you to explain. I appreciate your giving us some proposals for amendments, an expansion on them and the reverse onus argument. Mr. Justice Gomery also suggested there should be some degree of reverse onus. It is interesting that you would pick up on that, but we have not seen it in the bill.
What do you think about the tribunal's having the right to provide an award of damages up to $10,000 to try to save someone who has been wrongly dealt with in reprisal. Is that a good idea or a bad idea?
Mr. Falconer: I will let Mr. Lévesque answer that.
Mr. Lévesque: It is like a game-show on television: you pick up a mirror and you redirect the question. I will give you a general answer. As soon as a tribunal or a decision-maker recognizes that improper action was taken vis-à-vis an employee, that he or she was suspended or dismissed and that this was discriminatory, then clearly the tribunal must have the authority to put an end to these actions, in order for there to be reintegration of the employee, and there could also be some form of financial compensation if the proof is there. I have no conceptual difficulty with imagining that.
Senator Day: Mr. Falconer, if you were successful in having your justice and dignity clause included, would you need "pain and suffering" and "$10,000," as well?
Mr. Falconer: It depends on the purpose of the award. What is the purpose? We had the discussion prior to today about a notion of a reward for coming forward. We were quite clear that we want legislation that will make people feel truly comfortable about coming forward. We do not like the idea of people coming forward simply because there is a monetary gain to be had, even though all the other provisions we are talking about were in place. That would be a mistake. It would be another case should there be damages that might be compensated "over and above" or "in addition to," within an established system. Those have to be well thought out so as not to encourage people to come forward simply because they might have an opportunity for financial compensation. The bill is not about that. Rather, we want to ensure that people feel comfortable enough to come forward. We believe that the modest changes we are suggesting will make people feel more comfortable about coming forward when there is an issue. I do not know if that answers your question.
Senator Day: It answers in a way and certainly gives us something to think about. You are tying this into the $1,000 reward for bringing forward the information initially, which neither of you favoured so it was removed. It was removed when the bill was before the House of Commons. However, the $10,000 reward is still in the bill as passed by the other place last June. Do you think there is a danger it might have the same effect?
Mr. Falconer: The presumption should be that when damages can be awarded to someone, they must be in concrete terms. I do not think that presents a problem provided people do not expect to be rewarded at the end of every process. Whether it is called an award or a reward, people should not be rewarded for doing their civic duty.
Senator Day: I appreciate your comment and your definition of "justice and dignity." I would like to ask you a question about trying to keep people whole. Assuming there is no appeal of the commissioner's refusal, other than to the Federal Court, what impact would the available $1,500 lawyer retainer have? Would that keep people whole?
Mr. Falconer: If the event is serious and the litigation continues, it would not; $1,500 would not take care of much more than one or two hours in legal fees.
Senator Day: Certainly, it is quite a low figure. However, it is stated in the bill as the maximum allowed, with no escalator clause and no indexing.
Mr. Falconer: I hate to be the one to keep repeating this but if the proposed legislation were structured properly, if everyone were to know about it, and if everyone were to feel comfortable that it was in place to protect them should they need to come forward, then there should not be any need for legal wrangling. I am being a bit like Pollyanna but I do believe there is an opportunity to make some good, concrete suggestions on how to make this a stronger piece of proposed legislation from which Canadians will benefit.
Senator Day: Mr. Lévesque, do you believe that the amount of $1,500 for lawyers' fees would help?
Mr. Lévesque: Like you, I believe that providing for a fixed amount within the act is a desirable or appropriate thing. If we want to provide for this kind of mechanism, then instead of it being discretionary, why not set parameters rather than a single amount?
Senator Day: Thank you, Mr. Chairman.
The Chairman: The maximum amount normally provided for legal advice under the act is $1,500. In exceptional circumstances up to $3,000 may be authorized.
Senator Day: I am glad you pointed that out.
Senator Ringuette: With regard to the greater number of employees affected by this legislation and the concrete example of the security screener at the Ottawa airport we heard about last May or June, you seem to be very comfortable with the protection process provided by the Industrial Relations Act.
Do you believe that it is in this bill that we should be dealing with the increase in the number of workers protected by the law or that we should rather be amending the Industrial Relations Act and using this process with regard to the increase in the number of affected workers?
Mr. Lévesque: That is a proposal from my colleague Mr. Deveau. I reserved my comments in this area. I do not have a definitive opinion per se, but I do have some difficulty conceiving of the application of the act to a subcontractor or a subcontracting company. I am not necessarily opposed to this, but I do see some legal difficulties on the enforcement side.
Senator Ringuette: But with the Industrial Relations Act, the subcontractor would automatically be included in the category of those employees who come under federal jurisdiction.
Mr. Lévesque: Yes, but it would in a way be a kind of detour. Because if we want to amend the Canada Labour Code to provide protection to an employee working for a federal subcontractor, in order for him or her to be able to report on wrongdoing, then it more or less amounts to the same thing. Why not include these people under the original act, even if it means granting jurisdiction to the commission to hear these complaints, which would be logical? But, strictly speaking, this is not a proposal coming from our side, but rather from my colleague, Mr. Deveau.
Senator Ringuette: Do you have any opinions on that, Mr. Falconer?
Mr. Falconer: There are so many contractors now. The federal government contracts out a lot of work to subcontractors, and those people are in a position to know if there is a problem that the federal government should know about.
Our union believes that limiting the bill to the true employees of the federal government would be a disservice. We want people to feel that they can come forward and contribute by blowing the whistle on an issue. If the bill does not include contractors, we will never get to hear about information from their jobs. They will never be able to blow the whistle. It is a Catch-22. Those contractors are doing valuable government work paid for by public funds; as such, they should be covered by this legislation.
I would like to see a piece of legislation that covers the private sector, but that is another discussion.
Senator Ringuette: As you mentioned earlier, some of these people are subcontractors to agencies, not contractors to the federal government directly. How can you make sure that you include them all and not exclude others? I understand that it is a delicate balance.
Mr. Falconer: I think a line can be drawn around a group of people who would be considered to fall within the federal government's sphere of influence. I certainly believe that of the airport screeners, the people who deliver pre-board screening at 89 airports in Canada. I truly believe they would be included as federal employees for the purposes of this bill.
Senator Milne: I was down for a second round but my second round question is really a supplementary to Senator Ringuette's.
Justice Gomery made a recommendation and I will read it to you:
the definition of the class of persons authorized to make disclosures under the Act ("public servants") should be broadened to include anyone who is carrying out work on behalf of the Government...
That is in the Gomery recommendations on page 186.
I think maybe that is what Mr. Deveau was talking about — broadening the definition. If we amend the bill to broaden that definition along the Gomery lines, it would be refreshing because then at least one of the Gomery recommendations would be included in this bill. So far there are not any. Do you have any reaction to that?
Mr. Falconer: Right on, Justice Gomery. I do not know what to add.
Mr. Lévesque: I find your quote appropriate and timely. But, as I was saying earlier, I have no problem accepting that protection be granted indirectly to those persons belonging to the federal sphere, but I am having difficulty fitting that into the mechanics of the bill.
Senator Joyal: The question I wanted to pursue earlier was the following: what role will the unions be giving themselves with regard to the enforcement of the act and the protection of employees?
How will unions accompany the employee who blows the whistle and who then sees his or her complaint dismissed by the commissioner or then decides to appeal or else, at another stage, is of the belief that he or she has been targeted by disciplinary measures or by some reaction on the part of his or her employer that in his or her view is challenging his or her status?
Mr. Lévesque: As far as the Confédération des syndicats nationaux is concerned, both on June 30 as well as previously, with regard to Bill C-11, there was no opposition to the bill. The condition of course is that the mechanisms provided for be respectful of the people involved, more particularly the whistle-blowers, since that is the term used.
That being said, it seems to me that there are two stages: an individual stage and a personal stage, that is to say the reporting itself — for which I do not believe that there is any need to be accompanied.
We are not opposed to this type of bill, but whistle-blowing per se is an individual matter. With regard to protection, I do not believe that I am mistaken in believing that unions will accompany those individuals who are victims of reprisals or of further wrongdoing, through discriminatory measures, suspension or even dismissal. In such cases, the unions will accompany these people, as is always the case in matters of termination of employment or some other labour relations related injustice.
Senator Joyal: There will be no need for you to amend your collective agreements in order to better define the responsibility you believe you have with regard to employee protection under the framework of this bill, will there?
Mr. Lévesque: What I am saying is that members will most certainly be accompanied in matters regarding their job and their relationship with their employer. In that regard, there is no need to amend anything whatsoever. The matter of responsibility is, however, something completely different.
As far as unions formally having that responsibility and that duty, I do not intend to make any further statements about that today. But what is clear to me is that if the employment relationship is involved, unions will be accompanying members.
Senator Joyal: Mr. Falconer, do you want to comment on the same issue?
Mr. Falconer: We will represent our members to the hilt on any type of injustice we believe has been perpetrated. In other words, if this proposed legislation can be used for us, we will certainly encourage our members to use it, promote the use of it and defend our members' rights to that.
Having said that, I think this bill speaks to something more fundamental: the people who are not covered by a collective agreement. They are the middle and senior management of the federal government. That is where this bill plays an important part.
We will certainly use our collective agreements to protect and defend our members and we will use our finances to support them. Whether we have to go the tribunal route or through the labour relations board, or to judicial review or Federal Court, for our members we will use our resources to take on that fight.
However, as I said, the middle and senior management do not have an affiliation with our union or with the CNTU or any other federal labour union that they can rely on. This is an indirect appeal to anybody out there to get unionized by the United Steelworkers.
Senator Nolin: In the area of costs, what is the process? Is it like with regular courts of law, where you are entitled to costs if you win and you must pay those of the other party if you lose?
Mr. Lévesque: There are no costs — at least not in the case of the courts that come under the Canada Labour Code or the Quebec Code. A new mechanism provides for a certain form of compensation, but there are no formal legal costs as in the case of regular law courts.
Senator Nolin: Let us explore in greater detail this cost award issue. I would like to talk about the situation of the person who is not represented, who must defend him or herself and push for the exercise of his or her rights. What happens in this case with regard to costs and more particularly extra-judicial costs?
Mr. Lévesque: That is a good question, and I believe that we have provided a partial answer. There are no costs awarded per se. For example, an individual who files a complaint for dismissal related to union activities, be it at the federal or at the provincial level, will not be entitled to recovery of costs. The parties must themselves assume their representation costs.
Senator Nolin: In the case of employees who are represented or who could be if there is the necessary accreditation, you assume their costs and the opposite party covers its costs.
If we are dealing with an unrepresented employee, the same principle applies, but this person risks having to rely on more modest means.
Mr. Lévesque: Indeed.
Senator Nolin: Is that not a concern for you?
Mr. Falconer: Of course. That is why we want the reverse onus. Before we get to this level, before we get to a tribunal, we want to ensure that the employer understands that it has to provide solid evidence as to why it has done what it has done in regards to this discipline.
Anybody who does not have access to representation, does not have the same resources.
Senator Joyal: I would like to follow up on the same thing. If the individual does not have the benefit of the protection granted by a collective agreement, he or she will clearly have to call upon the protection provided by general labour relations law. What protection might this person have under this general public service labour relations legislation, if he or she is not covered by a collective agreement?
Mr. Lévesque: Unless I am mistaken, I believe that we are talking about two things here. The public service is by its very nature broadly represented. The problem is therefore different than that of employees who are not covered by union accreditation.
The legislation we are talking about, under parts 1, 2 and 3 of the Canada Labour Code, or any other legislation, does not solve the problem brought up by Senator Nolin with regard to representation costs or legal fees. There are all sorts of challenge mechanisms in existence. For example, section 240 of the Canada Labour Code allows one to file a complaint for unjust or wrongful dismissal. However, that does not resolve the costs problem. We therefore find ourselves faced with the same problem, if my understanding of the concern brought up by Senator Nolin is correct.
Senator Nolin: There is an obstacle.
Mr. Lévesque: Indeed, there is an obstacle.
Senator Joyal: There is a gap for a category of employees who are not covered by a collective agreement or who are not covered by the other provisions of the act relating to them.
Mr. Lévesque: I do not know how many people would be in that situation. It is my understanding that there is an upper stratum that would be affected.
Senator Joyal: Do you have any other comments on how people who had no assistance from collective agreements would be affected?
Mr. Falconer: My answer is the same as Mr. Lévesque's. The public service is well represented by unions. Again, I do not have any breakdown. I would not be able to tell you a percentage.
Senator Joyal: Your answer is to accept your proposal to reverse onus and have a justice and dignity clause so that the person can stay on the job while the process is taking place.
Mr. Falconer: That also gives them the ability to fight the case. It is more difficult to retain a lawyer when one is unemployed there is no money. It is a really bad situation when someone gets fired and has no recourse to mechanisms to reinstate him or her.
Senator Nolin: I would like to delve a little bit further into the matter of extra-judicial costs.
In common law, we know that courts are very reticent about granting this type of damages. Is it the case in administrative law? According to your reading of the bill, would tribunals be allowed to grant this type of damages, which might help lessen the obstacle to access and the application of the law?
Mr. Lévesque: Are you talking about lawyers' fees?
Senator Nolin: I am still talking about the burden befalling the individual wishing to benefit from protection under the act. Such a person might decide to not go ahead, given that the financial risk is often enormous, even if the person is still getting a salary.
Mr. Lévesque: I cannot think of a case of equivalent protection. If we are talking about complaints for dismissal related to union activities, at the federal or provincial level, I cannot think of any case where the court condemned the employer to having to pay the costs or legal fees of the complainant. However, we do see this kind of decision with more standard dismissal complaints.
I referred earlier to Section 240 of the Canada Labour Code. In Quebec, we have the equivalent in Clause 124 of the Loi sur les normes du travail. Subject to correction, there have been decisions granting some form of compensation to cover extra-judicial fees. I have a few in mind, at the provincial level. However, I am stating this subject to correction. If Committee members will allow me, I will verify that and forward the document to you.
Senator Nolin: I have found the answer to my question. It is on page 154, line 35, of the English version:
The tribunal may pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal.
In your view, can this language be sufficiently liberally interpreted so as to include extra-judicial fees?
Mr. Lévesque: If the idea is to cover this type of damages, then it would be preferable to be more precise.
Senator Nolin: It is not common practice for regular law courts to grant this type of reimbursement as damages. These fees are not damages, because there is the whole debate on the value of one party's lawyer versus the value of the other party's.
Mr. Lévesque: There virtually has to be malicious intent to harm.
Senator Nolin: In that scenario, there is a whole new debate that opens up.
Mr. Lévesque: Indeed, one's interest is more precise.
The Chairman: Thank you, Mr. Falconer and Mr. Lévesque, for coming before the committee. It was interesting to hear your points of view and to hear your concerns with some clauses of Bill C-2. Your perspectives will be taken into consideration by the committee.
I am now pleased to welcome Joanne Gualtieri, director of the Federal Accountability Initiative for Reform, the Honourable David Kilgour, a member of the board of directors, and Mr. David Hutton, the organization's coordinator.
FAIR seeks to promote and accountability within government by empowering employees to speak out without fear of reprisal when they encounter wrongdoing. Ms. Gualtieri founded the organization in 1998.
We are also joined today by Allan Cutler, a retired public works employee, as I think everyone here knows, who became concerned about certain aspects of government contracting as far back as 1995.
The committee welcomes all of you, and we would like you to make your presentation. Following the presentation, honourable senators will have a number of questions to put to you. We can engage in a lively discussion.
Ms. Gualtieri, will it be you who makes the presentation on behalf of your group?
Joanna Gualtieri, Director, Federal Accountability Initiative for Reform (FAIR): We will share.
I should like to thank you first for having us; we really are deeply grateful for this opportunity. It is a formidable bill, both in its ambitious undertakings and in its size. I know there are many witnesses to hear from, so we are very honoured.
Our remarks will be brief because we have attended the proceedings before, and I have watched them. The Senate is quite knowledgeable about whistle-blowing protection and issues. Senator Kinsella played a leading role, and have I had the honour of speaking with him. We have been on panels and done interviews together.
Let me briefly talk about FAIR. I went to work for the Department of Foreign Affairs in 1992. I am a lawyer and have a background in real estate. I made a conscious decision to enter public service. I come from a family where public service and social engagement was promoted. I joined the bureau that manages its $3 billion of real estate for the diplomats abroad. I ascertained quite quickly that my function was essentially to rubber-stamp decisions and projects rather than engage in serious review and analysis and do what was fiscally responsible and accountable to the people of Canada.
I spoke up conscientiously about the issues and, as a result, descended into what became really a nightmare of harassment and a very tyrannical environment. In 1998, I went on leave from the department, and as a result of my experience I became firmly committed to the idea — and what have I to say is really a dream — that there will be a public-interest organization in Canada that will promote occupational free speech and genuinely empower employees to do the right thing and to defend the public interest.
That is the genesis of Federal Accountability Initiative for Reform. It is a humble organization with perhaps not so humble ambition. We have operated with volunteers, and we are grateful to have the involvement of the Honourable David Kilgour, who has been of great assistance. Professors at the Richard Ivey School of Business have assisted, and it is a movement that is growing. David Hutton came on as a coordinator and has been instrumental in getting the message out there.
Why am I and the organization so committed to protecting whistle-blowers? It is very simple. Freedom of expression is the cornerstone of human rights for an enlightened democracy. Canada sees itself as being an international leader in this regard. Any commitment to this obviously requires the right to blow the whistle, since blowing the whistle is merely the exercise of occupational free speech.
You cannot have a credible vision for enlightened democracy unless you protect whistle-blowers and those seeking to blow the whistle. The question then becomes, why do so few people blow the whistle? I can tell you, given my experience — and it is not only my personal experience but my experience talking to thousands of other Canadians — that the choice is a very difficult one because the consequences are so grave. I imagine that this will come out in the discussion. Research has found that there are really two reasons people do not blow the whistle. One is that they fear there will be no corrective action taken and, secondly, that they will not be protected. We will examine this in the context of Bill C-2 and Bill C-11 and see that, though the Bill C-2 has proclaimed to do both, it has failed. We hope to encourage the Senate to bring the government to deliver what it has promised to deliver.
We have provided two brief pages of what we feel are the essential points the committee must consider. Let me highlight a couple of shortcomings in the bill. First, it should provide for full free-speech rights. This means that we should not be imposing a regime that says you can blow the whistle, but you can blow it only when we say when, to whom and how. "Free speech" means full free-speech rights, and there should be no loopholes on this. This is found on page 1 of our presentation.
Second, it should ensure the right to disclose all illegality and misconduct and not provide, as Bill C-2 and Bill C-11 has, a closed list of wrongdoing. I consider it to be a serious problem that the list does not expressly include Treasury Board policies. There is something very ironic that it is Treasury Board policies that were breached and violated in the sponsorship scandal and yet they are not identified as a wrongdoing in this bill, which came about as a result of the sponsorship scandal.
Third, the bill has to address all forms of harassment. This is very important. Protection is absolutely essential to having whistle-blowing. The most dangerous forms of harassment we are finding are the more passive forms of harassment, namely, the smear campaigns, the failure to promote people, the isolation of people, and the withdrawal of meaningful work. An example of a more active form of harassment is termination, but I assure you that that is not the prevailing threat in government these days, because there are processes in place to deal with those, primarily grievance processes. What managers have learned is to destroy people emotionally and psychologically, and they have thus far gotten away with it.
Critical — and we have emphasized this point time and time again — is that whistle-blowers must have access to our courts of justice. They have been stripped of this right; it must be restored. The bottom-line test for seeking a remedy for remedial rights is access to open and transparent courts.
Finally, I have talked about corrective action. There is no provision in the bills to order corrective action. It is the same old, unfortunately, overused process of enabling the commissioner to make a recommendation to Parliament. It does not work. It will not work. There must be the right to order corrective action. Otherwise, we do not see that there will be much change.
Mr. Hutton will address a couple of issues, but I have reflected on the fact that it has been said that the senators really must pass this bill because, if they do not, they will be seen to be turning their backs on accountability. We genuinely believe that the Senate's finest hour will be found in being proponents of accountability. That will be done by getting back to the drawing board and doing this right. We have waited a long time for whistle-blowing protection. The public service and Canadians are dependent on you to implement this correctly.
We are looking to you for leadership in that regard. Thank you so much.
The Chairman: Mr. Hutton, did you want to add something further?
Mr. Hutton: Yes.
The Chairman: Following that, I want to hear from Mr. Cutler, and then we will open questions.
David Hutton, Coordinator, Federal Accountability Initiative for Reform (FAIR): I am a citizen who has become concerned about this issue and as a result got involved in FAIR. I am also someone who has a lifelong experience of studying management practices and working with organizations to help them to function. When I approach this subject, I begin to learn more about it.
A couple of things strike me. One is that the drafting process seems to be deeply flawed, in my opinion. What I see is legislation coming forward that is extremely complex and bulky. I will contrast that with the Auditor General Act. I can read that legislation. It is clear, it is simple, and it is obvious what it wants to accomplish. It works very well.
On the other hand, Bill C-2 is many times larger. It is complex and it is full of loopholes when you dig into it. I feel that the committees have been given an impossible task, namely, trying to turn this into effective legislation that meets intent.
I have some suggestions about the drafting process. Basically, we want to offer the committee the idea of giving a clearer purpose to the drafting process by referring the drafters to the OAS model law. This is part of an international effort to develop a law that would be an anti-corruption measure. OAS states, including Canada, have signatories who have ratified this anti-corruption legislation. We would like this to be entered into the record. There are also 23 points written by the same people who are the principal authors of this.
The Chairman: The witness has referred to three different documents. Do we have copies of all these documents? Have they been given to the committee?
Mr. Hutton: Not as yet.
The Chairman: What has been given to the committee by you?
Mr. Hutton: What has been given to the committee thus far is a three-page document, which we have distributed.
The Chairman: Okay. We have that.
Mr. Hutton: You do not have these other documents. I am referring to them because we will be asking that they be entered into the record. We believe they are important, too.
The Chairman: It would be helpful if we could get them now and have them photocopied, so that they can be circulated to committee members.
The Honourable David Kilgour, Advisory Board, Federal Accountability Initiative for Reform (FAIR): As witnesses, can we move that they be made part of the record?
The Chairman: That is not necessary. I would like to get them photocopied so that they can be circulated and given to the senators while you are here.
Senator Campbell: Could we just have them tabled?
The Chairman: We can certainly do that.
Senator Campbell: We can then read them. They are laid out by another organization, OAS, which is an international organization.
The Chairman: Yes.
Senator Campbell: That is just a suggestion.
The Chairman: My only hope, Senator Campbell, is that, somehow, I could get some of these documents in senators' hands right now while the witnesses are here so that you could put some questions to the witnesses on them. They certainly can be tabled as well.
Mr. Hutton: Senator Oliver, I would suggest that we will not need to refer to them, but they will be very useful afterwards.
The Chairman: Please proceed.
Mr. Hutton: Our suggestion is that we use these documents and Canada's commitment to comply with this type of structure as a tool to clean up the current legislation and ask the drafters simply to make the legislation comply with the model law.
Concerning the drafting process, which is currently behind closed doors and we do not see the drafts until they are finally presented to committee, we would like to see some outside experts involved in that process to help with the drafting process so that what comes to the committees has already had some expert scrutiny beyond government employees.
I want to thank you for your time.
The Chairman: I wish to turn now to Mr. Allan Cutler. You may have the floor to make an introductory remark.
Allan Cutler, as an individual: I appreciate the opportunity to be here. As can you appreciate, I am not a lawyer. I come from this from a very different type of viewpoint. I read the proposed legislation and in so doing asked myself whether it would have possibly helped me in my situation and others in their situations. I do it from a layman's viewpoint.
I want to go back to first steps. I want to explain what a whistle-blower is. I know you have heard it before. I want you to realize the context. It will flow when you understand what I will be speaking on.
A whistle-blower is an employee who exercises the right of free speech — and we fully agree on the right of free speech — to challenge abuses of power or illegality that betray the public trust. In other words, the whistle-blower is a guardian of the public trust, wanting to ensure that the highest standard of integrity and accountability is maintained for everyone. It is a trust that is honoured by whistle-blowers and a trust that is respected, and they pay a huge price for it, as many of us know. However, there is a strong myth that the whistle-blower is the troublemaker.
I give speeches to a large number of people. Last week, I gave a speech at Calian to a group of businessmen from around the country. The subject was committed and responsible leadership. In it, I asked them for a synonym for the word "whistle-blower." I did not get one positive comment. The synonyms they came up with were informer, betrayer, snitch, tattle-tale, blabbermouth, squealer, stool pigeon, stoolie, fink and spy. The word "narc" was also used.
Every single word that came up as a synonym was negative. They could recognize the need to find a positive word, but they could not find one. They continually found negative words.
This morning I phoned one of the ministers' offices, and the first thing I heard was questioning the motive of the whistle-blowers. Why are they coming forward? The suspicion that they have an ulterior motive was there before I even got into a discussion of an issue. The myth is there and the belief is there.
It is evolving slowly. We are gradually moving to the point where we can say "whistle-blower" without everyone saying, "oh, one of those." I am rather unique because of the brand I was given where I can use the word "whistle-blower" and people look upon it as a good thing. In that respect, I am very unique.
If you have an honest and ethically managed government, there would not be any whistle-blowing. Why are there whistle-blowers? We must ask ourselves that. It is because there are problems, and people perceive the need to try to correct those problems.
I am aware of about 10 whistle-blowing cases at the moment, and I just received an email this morning about another one. Those whistle-blowers will not come out to the public. They are scared. They are afraid of retribution and of losing their jobs. They are right. The fear is still there. There is no protection for them. This bill has some hope of giving them some protection, in my opinion. They do want to be able to report the problem. They want to be honoured as guardians of the public trust.
What they really want for the damages they suffer is restoration, to be made whole. They want to be able to go forward with their lives and hold their heads up high and have dignity and allow themselves to heal. Many of them bear scars for years. I know some of them who are far beyond the case of Ms. Gualtieri and my case; they are still walking wounded. It is the only way to describe them.
You cannot repair the damage that has been done to us. The damage cannot be undone. You can restore what we should have had, but the damage cannot be repaired. We bear the scars for the rest of our lives. You just do not see them. They are invisible, but they are there. When we have talked, we can tell in our voices.
Government is a large organization. Large organizations always have problems, so you need people who will come forward and help. These are issues dealing with management abuse or systemic problems. They are not political problems. They only become a political problem if they are left untreated, as in my case. If it had been treated early, it would never have become political. It was well known in the bureaucracy before it became political.
Trust in government is low. If you ask anybody, they do not trust the government, the politicians or people who work in government. You will not get the best and brightest coming in when they look and wonder if that is all they get. They do not want to come here. You have to change the culture before you do anything else.
With Bill C-11, which has passed but has not been declared, I was on record as stating no law is better than a bad law, and I was totally against its being passed. With the whistle-blowing portion of Bill C-2, I am on record as saying it is workable and giving it a conditional passage. I will not give it a ringing endorsement. There are serious flaws in it, even now. However, with the right commissioner, it can be made to work. That is an important point.
Litigation has its place. I agree one should have the right to it, but it should be the last option, not the first. Too often it has been the first and only option. The government has unlimited financial resources for litigation.
For a private citizen in this day and age to litigate against the government, you have to be well-off with strong financial resources. Too many people look at the cost — I know some of them — and they give up. They cannot afford litigation. Justice is costly in this day and age. That is just a comment on the society in which we live. We are becoming more litigious all the time. Whistle-blowers should have the right to litigation, but there should be alternatives before that.
Under the whistle-blowing portion of Bill C-2, I continue to wonder if I would have been protected, and I believe I would have been protected and had an alternative to choose to be protected. However, the other question is whether others would have been protected, the next group, the people I am talking to. I believe they could be protected as well. The legislation is workable, but the flaws are bad.
Extensive improvements must be made. I will comment only on three fundamental improvements that must be there. Most times there is the expression "you cannot see the forest for the trees." I do not think you can see the trees for the forest with all the amendments proposed to you. I will limit my discussion to three suggestions, and hopefully they will be considered.
First, the bill still leaves the burden of proof for reprisals on the whistle-blower. The burden of proof following a whistle-blowing incident should be on management. All management has to do under the new bill would be to claim the incident is unrelated. The burden of proving they are linked therefore falls on the whistle-blower. It is impossible to prove reprisals if you do not have access to the information and documents that led up to the situation. If the events are close in time, the burden of proof must be on management. They must prove they are unrelated, not prove they are related.
Second, proposed new subsections 25.1 (4), (5) and (6) all limit the amount that can be paid for legal advice provided to the whistle-blower. That is an unacceptable amount. The ceiling is $3,000, except that you can go up to $6,000 with proposed subsection 25.1(6). That amount of money represents four days of work for a lawyer. The lawyer does not really get a chance to look at your case or to help you.
A manager accused of wrongdoing will usually be allowed up to $25,000 for their legal expenses. That appears in the rules and guidelines of departments right now. The whistle-blower gets a pittance in comparison. At the very least, the amount should be equal so the whistle-blower has the ability to get legal representation when needed.
Third, in clause 201 of the bill, proposed new sections 19.1 (2) and 19.2 (2) on page 140 state that complaints about reprisals have to be filed within 60 days of the time the complainant knew the reprisal was taking place. That is far too short a time. A year would be more realistic.
Ms. Gualtieri mentioned reprisals. I will give you a more extensive list of these reprisals. They include intimidation, demotion, firing, blacklisting, threats, forced transfer, manufacturing a poor record, humiliation, denial of meaningful work, complete paralysis of one's career and isolation.
It can be so bad that you can report to work and have no work to do. You cannot read a book because that is insubordinate. You cannot fall asleep for the day. Your colleagues will not talk to you. What do you do to fill your time for a full working day when you have zero to do? You cannot spend it talking to people on the phone. Your mind will find a way to cope, but it is not a healthy situation. It happens to people.
Likely a person in that situation who knows they have 60 days will talk to management as a first step. Okay. Management responds: sham investigations, and they study the issue to death by dragging consultations out indefinitely. Before you know it, the 60 days have passed. A good employee, who has goodwill, will run out of the time period because management has great power and ability to stall and use up all the time. Sixty days is not enough, and that must be fixed.
A famous whistle-blower quote, which Ms. Gualtieri and I have heard many times, claims that "if you have God, the law, the press and the facts on your side you have a 50 per cent chance of defeating the bureaucracy." That needs to be changed.
I will conclude by saying that I hope by limiting my remarks to these three key points they will not get lost with everything else you are hearing.
The Chairman: Thank you. It is interesting for the committee to hear from people who have been involved in government and in departments and who bring their own and others' personal experiences of reprisals and the consequences of blowing the whistle when you perceived wrongdoing. Your personal testimony will help the committee.
Senator Cowan: Welcome and thank you for your presentation. All of us had an opportunity to read that material and also what you said in previous occasions about these issues.
Ms. Gualtieri, you gave the House committee an extensive presentation in May, I think it was, with respect to Bill C-2. At that time, did you provide a list of suggested amendments? Mr. Hutton referred to the convention of the OAS. If you did provide a list of amendments, and if there are any that were not picked up, could you provide them to our clerk so that we have the benefit of those?
Ms. Gualtieri: Thank you for that question. The point has to be made that the legislation was so off the mark, it was difficult to amend. As we often see when government releases access documents, there were so many strikes through it the question arose as to whether it was best to go back and do it in the spirit in which whistle-blowing legislation was promoted. As the government said, it would be ironclad protection.
I provided a point-by-point breakdown of the essential elements of effective whistle-blowing legislation and I referenced the bill, indicating what the bill provides. I will provide that to the committee. It is a fairly dense document but it may be helpful.
As for amendments, I proposed amendments on key points — the full free speech right, and the right to disclose all illegalities. I provided actual wording, and I will give that to your committee as well.
Senator Cowan: That would be helpful. I think it is unlikely that we will say this is such a mess that we should start all over on a different basis. This bill has already been passed by the House of Commons and we are in the position of trying to improve it. Any help that you can give us along those lines will be greatly appreciated.
Ms. Gualtieri: That is a fair comment, yes.
Senator Cowan: We are not starting with a blank sheet of paper. There are many sheets of paper.
Ms. Gualtieri: We recognize that now. At the Commons we were still hopeful there would be a more robust debate at committee but we recognize now that we are working with this and so we will provide actual amendment clauses.
Senator Cowan: Were any of your suggestions picked up in the course of amendments in the House?
Ms. Gualtieri: No, virtually none.
Senator Cowan: As an organization that had an interest in this area, were you consulted prior to the introduction of the bill?
Ms. Gualtieri: No, we were not. I had also promoted that it just made good common sense and appeared to be a fully inclusive process to contact, for instance, the Government Accountability Project in Washington, which is the world's leading organization on whistle-blower legislation and protection. They consult all over the world — Korea, Israel, Mexico, the Ukraine — and yet the Canadian government has never asked them for assistance. They are on Capital Hill virtually every day. They have great champions on Capitol Hill. Senator Grassley of Iowa has been one of the strongest proponents, and there are others. David Hutton has a list. However, it has been a very different environment for them there. We must remember that there were seminal events in American history — the Pentagon papers, Watergate and the explosion of the Challenger — that compelled the politicians in the United States to take up this issue seriously.
I would urge you to call upon the Government Accountability Project. I spoke to them last night and they said they would be happy to come; they are Louis Clark and Tom Devine. They are both lawyers and they would be invaluable.
We were not consulted. In fact, Professor Keyserlingk was not even consulted and he was leading the charge in Canada.
The Chairman: He was here before us this morning.
Ms. Gualtieri: I know, senator, and I know Professor Keyserlingk quite well. One of the problems is that there was not wide consultation.
Senator Cowan: I know you had a number of criticisms of the bill but I just wanted to talk about two if I might. One was the definition of reprisals. Both you and Mr. Cutler referred to that, commenting that there are many more examples of what could be considered reprisal, but they are not specifically mentioned in the legislation and so do not count. Could you give your view on that? I think Mr. Cutler spoke about it particularly.
I would also like your view on broadening the availability of the protections afforded by the bill to people other than those actually in the public service. This is something that Dr. Keyserlingk referred to as well. If you could perhaps tie those two in and give us the benefit of your views I would be grateful.
Ms. Gualtieri: The issue of reprisal is critical. If people are harassed, why should they risk everything to serve the public interest? It is hardly fair to ask them to stick their necks out to save us, the public, when we do not give them the tools to save themselves. I have determined in the public service that it has become quite sophisticated. We have a long history of union grievances in Canada. In fact we saw ourselves as one of the champions of having a robust union environment. The unions have jurisdiction over terminations and classic disciplinary measures, so management has figured out that they have to stay away from that type of retaliation because there is a process that will kick into place and they will be challenged. We can discuss how it is still difficult to prevail even with the union is your side, but there is at least a process.
Management has become sophisticated and adept. They terrorize people in subtle ways, as Mr. Cutler identified. I would suggest that "reprisal" be defined very broadly in the language. It should include termination, of course. In fact, I worked on a bill to promote free speech, which was introduced at an early stage. It is a brief bill because free speech is a constitutional right under section 2 of the Charter. This is not esoteric stuff.
I drafted Bill C-288. I will provide you with a copy. It was introduced as a private member's bill. It talks about reprisal as being very broad. Reprisal is discrimination of any type, whether active forms of retaliation or passive forms, such as failure to promote, or smear campaigns, all the insidious behaviour that goes on. I can provide language to the committee that should be incorporated. The problem with the bill as it currently stands is that it addresses and envisages the classic disciplinary measures that I have identified.
Senator, could you refresh my memory on your second point?
Senator Cowan: Perhaps I did not express it clearly. I was seeking your view on extending the scope of the bill to include people who are not employed in the public service but who have information about what they perceive to be wrongdoing in the public service and to ensure that those people have the same encouragement to come forward, and protection if they do come forward, as those in the public service have.
I would be interested in the views of any member of the panel who would care to respond.
Mr. Hutton: That is an essential step to take, given the extent to which government subcontracts work to the private sector, even significant policy-related work. In many jurisdictions, any citizen can come forward, regardless of employment status, and receive this type of protection. It seems to me that if you do not extend the scope beyond the public service employees, then you are severely weakening the proposed legislation.
I would also make a point on your previous question about reprisal. My observation is that the reprisal may begin with the management of the department that the whistle-blower works for, but at some point many whistle-blowers are forced out and they find themselves unemployed. Their only recourse is to engage legal action to get some kind of redress. What happens then is that the government's lawyers get involved, and there is a continuation of the reprisal, where enormous sums of public money are spent to pursue these cases in a way that the litigant never gets his or her day in court and the public does not get to hear what really happened.
In Ms. Gualtieri's case, her litigation is in the ninth year and the Department of Justice has made every effort to delay this legislation and to keep her from getting her day in court, wearing her down financially and emotionally. It is outrageous. I include that in the definition of "reprisal." Our own government of the day is often guilty of reprisal in just the same way, and Ms. Gualtieri's is not the only case. There are Health Canada whistle-blowers and other people who have appeared before committees like this who have lost their jobs.
Mr. Cutler: So far I fully agree with everything I have heard. I provided a list of the comments that I made at the House of Commons committee which were not incorporated. From my own analysis, few changes were made in the whistle-blowing portion as the bill moved through. The changes were minor. They were not the major changes that I would have hoped for.
In terms of broadening harassment, I fully agree. I think that there has to be a second bill outside this bill to address all Canadians. The issue has been brought up about whistle-blowers outside of the federal government. There is no true whistle-blowing protection for most people in this country. That needs to be addressed. That is a side issue, but if a senator would like to sponsor one of these bills for the rest of the country, I am certain we would be in full support.
The Chairman: Several witnesses today have raised the same point, so you are endorsing what has already been advanced to this committee.
Mr. Cutler: We will help you write it.
Ms. Gualtieri: Yes.
Senator Cowan: You commented that you felt that Bill C-11 was bad law and that you would not support it. I take it your position is that Bill C-2 has made some improvements. I think you said that Bill C-11 would not have helped you in your particular situation.
Mr. Cutler: Bill C-11 was a management bill, designed to protect management completely.
Senator Cowan: Do you feel that Bill C-2 would have protected you? What particular amendments would you suggest? You provided us with a four-page listing of what you consider to be the major points.
Mr. Cutler: They are the major points, but the ones I talked about were the three key points, in my opinion.
Senator Cowan: With these suggestions incorporated, do you feel that the amendments to this bill would provide the kind of protection that you would require?
Mr. Cutler: They would provide the kind of protection. Again, I am not a lawyer. When I see the word "harassment," for example, I understand it in the common usage of the word; I do not understand it in the legal way. Reference is made to the public good. I do not know, nor will I pretend to know, what the legal definition is. I am pragmatic. I believe that Bill C-2 is workable and that therefore it should be passed. It is better than no bill. However, no bill was better than Bill C-11. I am not giving Bill C-2 a ringing endorsement; I am just saying it is workable. It can be proven in practice to work, but it will take some work. It would be nice to have something in law that we can work on improving, rather than having nothing in law.
Senator Cowan: Mr. Cutler, can you tell me about the development of these ethical principles? As I understand this proposed legislation, each department and institution is required to develop its own principles, which have to be consistent with certain guidelines. I think you have made the point that there need only be one set of ethical guidelines.
Mr. Cutler: I removed that from my comments here because I did not see it going anywhere, but I made that comment at the House of Commons committee. Only one set of ethical principles is needed.
Senator Cowan: Would a rationale for this position as set out in the bill be the concern that if you had a single set ethical principles, they would have to be so general that they might not meet the needs of specific organizations? What would you make of that argument?
Mr. Cutler: I see that as a false argument. I do not think that honesty and fairness are principles that are so general that everyone should have a particular viewpoint. There are basic principles and ethical values on which this society works, or says it works, which are fundamental for everyone and should cross every line. Those principles should not be: "Well I am fair to you, but I do not have to be fair to the next guy because the next guy defines `fair' differently." We need only one set of standards for everyone in terms of ethical values.
The reverse onus is a huge problem. If management claims that what is being done to the whistle-blower is not reprisal, then how do you prove it is reprisal? A good reverse onus says that when the events are close together, management has to prove that they are unrelated. The onus is not on the whistle-blower to prove that they are related.
Senator Cowan: I took that to be a major flaw that you saw in this piece of legislation.
Mr. Cutler: It is a major flaw, yes.
Senator Cowan: If it is as major as that, how can you say that the legislation is workable without some element of reverse onus?
Mr. Cutler: I say that because it does not come up in most cases. It is a flaw. It will happen occasionally, but in the majority of cases, management will not be claiming this. However, the ability for management to do that still exists. I believe, and Ms. Gualtieri can correct me if I am wrong, that the law of one of the states has that reverse onus.
Ms. Gualtieri: I agree. It is a finer point and it is included in the analysis that I will provide. It is probably one of the most critical elements. To put things in perspective, the Government Accountability Project in the United States reviewed this bill and calls it a cruel delusion, because one does not give rights to people and then fail to enforce those rights. This bill essentially offers the premise that people's rights will be protected, but then one has to surrender oneself to a government-run process that says it will ensure that justice is done.
What a time to disenfranchise the whistle-blower, just at the time that they are seeking rights to a remedy. It is a major flaw.
On the issue of reverse onus, four out of the first 2,000 whistle-blowers prevailed in the U.S. That is the case because they had an administrative board system, which is what this is. This is not a court of law; this is a board appointed by the Prime Minister. They also did not originally have the reverse burden.
When they changed the burden of proof, the success rate went up tremendously, because it gave whistle-blowers a fighting chance. Therefore it is absolutely essential.
Senator Stratton: Thank you for coming. It is very courageous of you to do this, and this is very interesting.
Sir, will you tell us about what happened to you?
Ms. Gualtieri, you have a similar problem. Could you tell us briefly about your situation?
It is important not only for this committee but also for the public to understand why you are here today. There are good reasons and the public needs to know them, if you do not mind.
Ms. Gualtieri: I commenced work for Foreign Affairs in the Bureau of Physical Resources in 1992. My job was to assist in managing the $3-billion portfolio of official residences and staff quarters for our diplomats around the world.
There were rules for doing this. Treasury Board had drafted rules on how the department was supposed to house its diplomats. There was emphasis on stewardship and on acquiring appropriate residences. In other words, we were not supposed to acquire lavish mansions. We were supposed to house people appropriately reflecting the Canadian spirit.
I found that we were not doing that. We were leaving multimillion-dollar residences empty because people did not like the size of the closets or the gardens. There were all sorts of things. This is probably not the forum to get into an exhaustive discussion about what I took umbrage with. I found that we were betraying what we told the public we were doing, so I spoke up about it. I spoke up internally, as most whistle-blowers do. Remember, they are just people doing their job. They do not even know they are a whistle-blower; they are merely doing their job.
I spoke to my director, my director general, the assistant deputy minister, the deputy minister and the minister, and the response was tried and true: cover-up and stonewalling, and spotlight the whistle-blower.
They completely isolated me. As I said, there was a process in place that ensured they could not take the more aggressive approach of terminating me.
I am one of the lucky ones. I am a lawyer, first, so I understand some of the issues. My parents and my closest friend are in this room today, as are others. They have been pillars of strength. I have survived this because of them. A very senior litigation lawyer, Mr. Stephen Victor, has assisted me.
Most whistle-blowers will be relegated to their basements. Some will survive and some will not. In the last ten years, two whistle-blowers, one who worked for Foreign Affairs and the other who worked for the mutual fund industry, called me before they committed suicide. They saw that as the only way out.
When I spoke up, I descended into tyranny. Management did not have to do it differently because no one was holding them to account. They thought that eventually I would leave. I did leave; I went on unpaid leave.
I do not know if that assists you, senator. We are trying to make it clear today that people deserve to have a voice. Even if people are wrong, that does not give management licence to denigrate and destroy people. There must be protection in place. We are utterly dependent.
I still want to know what went wrong in the gun registry.
The Chairman: Thank you. I would like to hear from Mr. Cutler on that, please, very briefly.
Mr. Cutler: My story is probably better known than Ms. Gualtieri's. It is just as painful and just a vicious with regard to what happened to me. It was a fluke that my story became public knowledge; it was not intended.
In 1994, I was ordered to report to Mr. Guité and work on what became sponsorship. I was working on advertising and public opinion surveys at the time. There was a collapsing of the rules and regulations — the checks and balances — and Mr. Guité had tremendous power within the department. I continually refused to sign documents and was eventually told that I would pay for refusing to sign documents that I said were illegal to sign. I would not recommend illegal documents nor do things that were illegal.
I went through the threats and all that Ms. Gualtieri experienced. The situation differs in only one respect. I had a letter from the department that said the problem was solved and would not recur. They put it in writing to me.
I had worked for the Department of Public Works for 20 years. One senior person who had known me stuck his neck out and offered me a job. No one else would touch me. I spent the rest of my career in one spot because my name was mud through the whole department. One person, Noel Bhumgara, stuck his neck out and offered me a job; that is the reason I survived with a job. This is where our stories differ. However, it is the exception; people do not come to the rescue very often.
Senator Stratton: Thank you very much.
Senator Zimmer: Welcome and thank you for your remarks. You are very courageous to be here today. You show leadership. Thank you for that.
Mr. Cutler, you used synonyms for "whistle-blower." You said "informer," "snitch," "tattle-tale," "babble mouth" — not one positive word. In fact, "whistle-blower" is not a positive word. I hope we will find a new word to replace it.
In saying that, you are very right. There is a fear factor out there. There are scars. There is lack of trust and lack of respect. It is very fragile.
My question to all of you is in regard to the public service. There seems to be a tendency to look outwards from the public service. They do not look inwards in their own department or section. Did you find that the NIMBY concept of "not in my backyard" is out there? Would you please comment?
Mr. Cutler: Yes. The problems that I have seen and heard about are not in every department or location. There are pockets of it. The pockets almost follow as the managers move on. When talking to a number of people who have problems, the same names recur. The whole NIMBY concept occurs right at the initial point when things are just happening. Another name for it is bystander apathy. You stand up and suddenly you have no friends. If they talk to you, they might be tainted by you. Nobody wants to know anything about the problem.
Ms. Gualtieri: When you say, "not in my backyard," are you saying that there are no problems in my section or that nobody in my section will speak out? I want to clarify that.
Senator Zimmer: The second part of that. They will look within the department. However, within their division or section they are reluctant to examine it, especially if they are in control of that section.
Ms. Gualtieri: That is an excellent point. We have to examine whether whistle-blowers will ever be protected. Ultimately, it is necessary to look at the underlying issue. It is about power and the retention of power. People do not relinquish that. There is not even necessarily malevolence involved, but there is an inherent desire to maintain power. Why risk empowering people who may somehow challenge the institution?
That is what is happening in government. I have come here today with a full-page story from this morning's Ottawa Citizen, entitled, "The light of transparency has dimmed." It is a story about John Reid, who David Kilgour knows well, and whom I have met. In the article, he talks yet again about how we are regressing rather than progressing.
There is a lack of respect for creativity in the government. Managers are not even being encouraged to promote this because there is such a tight concentration of power at the top. They will not countenance dissent. It is as simple as that.
Mr. Hutton: I will give you my perspective having seen many organizations in the public and private sectors. A universal problem is the difficulty of getting accurate information from the people in the trenches to those at the top of the organization, without it becoming polluted. Everyone has a natural inclination to minimize, conceal or not to highlight information about what is going on in the department. Such information may make them look bad. There is a process of sanitizing that goes on.
Healthy organizations have lots of mechanisms in place to try to overcome this. There are checks and balances, internal audits and mechanisms to prevent abusive employees. They go to great lengths to ensure that factual information gets to the people at the top.
I believe that, with hindsight, many of these situations seem almost criminal. Most arose in a benign way because people at the top were blindsided by what was going on deeper in their organization. That is an observation that pertains in particular to the public sector where there is a tradition of respect for the people above.
Senator Zimmer: I have a question for Mr. Cutler. You talked about the 60-day limitation period. We heard earlier testimony that addressed that issue. The present limitation period for an electoral financing offence is 10 years. Another five can be added on from the date the commissioner of the election becomes aware of it. You indicated one year. Do you still think that is the paradigm you can live with as far as one year or would you consider expanding it further in view of five or 10 years?
Mr. Cutler: Ten years would be way too long when talking about reporting the reprisals so that action can be taken to repair the damage. One cannot wait 10 years and then go back and say, "By the way, I was damaged 10 years ago."
Sixty days is much too short. Perhaps it should be 18 months. There has to be a reasonable timeline in which the person is aware and has the time to work on fixing it within their own area, and then has the ability to go elsewhere. Ten years would be far long for that type of situation.
Senator Zimmer: Thank you for your candour.
Senator Campbell: I find the term "whistle-blower" extremely offensive. I believe you should be called information patriots. I will tell you why. My background is in the RCMP where I spent all my time investigating. I firmly believe that if someone wants to commit a criminal act within an organization, he or she will be able to commit such an act. It will probably be found out through an audit process. In fact, the information patriot is acting as an auditor for instances that take place.
Can you tell me whether the following statements are true or false? First, is it true or false that public service whistle-blowers who bring their stories to the media will have protection under the proposed federal accountability act?
Ms. Gualtieri: False, except in very limited circumstances. We were told that we would be protected, but that protection has been pulled back.
Senator Campbell: Second, is it true or false that the plan is to protect all whistle-blowers regardless of the approach they take to expose corruption?
Ms. Gualtieri: False.
Senator Campbell: Both of these statements were made by Tory MP Pierre Poilievre. To be fair to him, in September 2000, the Ontario Superior Court ruled that all public servants have no right to sue the federal government. Is that correct in your case?
Ms. Gualtieri: That is an excellent point. It was my case, which I appealed.
Senator Campbell: A three-judge panel in the Ontario Court of Appeal unanimously overturned that verdict. Is that correct?
Ms. Gualtieri: Correct.
Senator Campbell: Instead of the government taking this to the Supreme Court of Canada, where one would assume one would be able to get a definitive answer, they passed Bill C-25, the Public Service Modernization Act.
Ms. Gualtieri: Clause 236 of that bill very quietly stripped away that hard-fought-for right.
Senator Campbell: Is there anything in this bill that will allow a public servant to sue the federal government?
Ms. Gualtieri: No. That is one of the central concerns that we have, even though it was promised.
If you recall, in the document, Stand up for Canada, concerning providing real protection for whistle-blowers, the Prime Minister pledged that his government would:
Ensure that whistle-blowers have access to the courts and that they are provided with adequate legal counsel.
Something has gone terribly wrong because that is not reflected in the bills as they currently stand.
Senator Campbell: In the time between that horrendous experience and today, nothing has changed. There is no legislative opportunity for whistle-blowers to take the matter to court. By taking such a stance, the federal government, Liberals and Conservatives alike, has said that it is above the law.
Ms. Gualtieri: The government has removed itself from the ultimate forum — the courts of law, which is where the tradition of openness and transparency is. Yes, the government has removed itself, and it has set up a parallel administrative system that has been shown historically to be a dismal failure. Take a look at the U.S. record where four out of 2,000 prevailed. Recently, 95 out of 96 whistle-blowers lost. It is not a good system.
The point must be made that the kind of corruption or wrongdoing asserted is of the nature that ultimately can take down a government. How can an administrative tribunal have the resources and the ability to deal with the issue? Justice Gomery had, we are told, a $50-million budget but he did not get to the bottom of many issues. An administrative tribunal is simply a huge failure and it should be replaced with access to courts. That was said by the Court of Appeal.
Senator Campbell: This bill is to provide for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. Does Bill C-2 do that in respect of whistle-blowers?
Ms. Gualtieri: No, it does not because the process is impotent to do that. Something has gone wrong, and I do not have the answers. I have met Pierre Poilievre many times. He indicated a great deal of support so perhaps this has occurred in the drafting. We have to remember that the bill was drafted by Department of Justice lawyers that also trounce the whistle-blowers. The reality is terrible. Consider the optics of it. There has to be some independence in this bill. The bottom line for accountability is the right to speak out. In the bill as it stands, accountability will be based on the wrong information. I like your term, "information patriot." The truth is needed first to be able to have accountability.
Senator Campbell: It is your term; use it as you wish. Thank you.
The Chairman: Mr. Cutler, did you want to respond to the questions just raised by Senator Campbell?
Mr. Cutler: The only matter that has not been mentioned is the ability for conciliation, which is a mediation group that has been put in amendments to the bill. That truly sold me on Bill C-2.
My experience is as a professional negotiator under cooperative negotiation to derive a result from which both parties can walk away. Legal is generally an adversarial winner-take-all and the other person loses; and it is a different frame of mind. I approach it from a conciliation point of view. I found that it was a good improvement in the bill.
Mr. Kilgour: On Senator Campbell's point, the Department of Justice, as you have heard, has been harassing Ms. Gualtieri for almost nine years. If you were to read the questions that she must answer in examinations for discovery, you would see that. I believe that you are in discovery this week, are you Ms. Gualtieri?
Ms. Gualtieri: Yes, I was there this morning.
Mr. Kilgour: I used to work in the civil litigation section of the Department of Justice. It is unprofessional and unethical. They have no sense of professionalism or decency in the civil litigation section. This is simply one case of many. I wrote a book about another case involving the civil litigation section. Senators might wonder what they can do about it but surely the next time the Minister of Justice appears before this committee, they could simply ask him why he has harassed this information patriot, Ms. Gualtieri, for nine years to try to grind her into the financial dirt. It is terrible.
Senator Milne: I have a tremendous amount of sympathy for you, Ms. Gualtieri. The actual effects on real live people are absolutely appalling.
I come back to the point, Ms. Gualtieri. You said the Senate must pass Bill C-2 and then you said we must send it back to the drafters, which is the Department of Justice — people that have been harassing you these many years. This committee cannot do that. We have three choices before us: First, we can pass the bill; second, we can amend it; or third, we can defeat it. Those are the choices of the Senate. We are not the government so we cannot send it back to the drafters. That it was not drafted correctly was a mistake at the outset. What do you prefer us to do?
Ms. Gualtieri: I want to clarify that, senator, because it sounds like I am terribly mixed up. I said that I understand, and it has been widely spoken about in the media, that the Senate must pass Bill C-2. That is what has been reported and that is what I meant. Rather, I am suggesting that a real act of patriotism, to use your term, Senator Campbell, would be to not acquiesce until you have tendered dramatic changes to the proposed whistle-blowing legislation. I consider it to be the centrepiece of any accountability initiative and information is the heart of institutional organizations. The committee can draft amendments, although it can be difficult. Ideally, a drafter would pick up a pen and go back to the drawing board to get it right. They could simply rescind what they have written and do it right. Recognizing that that cannot be done, I hope that the courage will be exercised to amend it so that some of these essential elements of true whistle-blower protection will make their way into the bill. Give whistle-blowers real shields, not paper shields. The committee can do that and we are asking that it be done.
Senator Milne: Send us your large sheaf of information and possible amendments. This morning we heard from witnesses who suggested two of the things that you are talking about. First, was the reverse onus, which Mr. Cutler mentioned this afternoon; and second, was broadening the class of persons authorized to make disclosures under the act. This was one of Justice Gomery's recommendations, but neither this one nor his others are in the bill, just as none of Mr. Reid's recommendations are in the bill.
In order to make this bill do what it is supposed to do, are you suggesting that we should broaden the class of persons to take it beyond the civil service to people who are working on contract for the civil service, for example?
Ms. Gualtieri: Absolutely, contractors should be included, without a doubt. When I was in the government, I saw that the employment of contractors is a highly pervasive practice and they must be protected.
Senator Milne: Particularly these days when governments are increasingly delegating the services that they themselves used to provide to outside contractors, for example Canadian Blood Services and NAV CANADA. Do you feel that those people should be included in the scope of this act?
Ms. Gualtieri: For any relative of one of the 60,000 victims of the tainted blood scandal, many of whom died a horrendous death, they would say absolutely that new blood service people need to be protected.
Senator Milne: Mr. Cutler, when you appeared on May 10 before a committee in the other place, you made the following comment about the effectiveness of Bill C-2:
Think for a moment: if Enron had been a Canadian company, this bill would not have protected anybody or helped anybody to come forward and let them know what was going on in Enron. There's no protection. In fact, the Sarbanes-Oxley Act of 2002, which is the U.S. bill, is the main protection for whistle-blowers in Canada outside of the federal government. So we're protected by U.S. law, because there are no real Canadian laws that protect us.
Could you tell us more about this? I am very concerned when I hear that Canadians are better protected by an American law in the United States than we are here in Canada.
Mr. Cutler: I could tell you more about it. This is something that Ms. Gualtieri taught me. It is a very important point. There is virtually no whistle-blowing protection in this country. If Enron had been in Canada, no one in Enron would have been protected.
Ms. Gualtieri, do you want to elaborate?
Ms. Gualtieri: Senator, I believe what you were specifically addressing is how it came to be that Canadians are protected by American statute. This has caused a lot of debate. Sarbanes-Oxley passed in 2002. What it says is that if a company is traded on the American stock exchange, the employees will have protection.
For instance, Nortel is traded in the States. There are so many big Canadian companies; I just use that as an example. Hollinger was traded in the States. If they are traded on the American stock exchange, they sought to exercise an extra-jurisdictional reach recognizing the need to protect the integrity of their exchanges. There may be challenges as to whether they can do that. Nonetheless, they took a very aggressive stance.
Incidentally, the whistle-blower experts feel that Sarbanes-Oxley is the best piece of whistle-blowing legislation in the world. That is because you have access to a trial by jury and the jury are the citizens; they are the public that we are seeking to protect. Put them on a jury and let them decide.
In Canada, the government has expressly forbidden jury trials when the government is a defendant.
Senator Milne: Not only that, in this bill, they have put various other government arm's length organizations under the Access to Information Act. On the other hand, they have said the proceedings will have to be secret forever.
Ms. Gualtieri: It is draconian.
Senator Joyal: I have two questions, one to Mr. Cutler and one to Ms. Gualtieri.
Mr. Cutler, on page 4 of your brief, the second point that you raised, which deals with the $3,000 ceiling that you referred to as mentioned in clause 203 — proposed new sections 25.1(4), (5) and (6) — limits the amount to be paid for legal advice to the whistle-blower. You contend that this is an unacceptable amount. You state that, "with luck, this may represent about 4 days' work for legal representation."
Any one of us who has had to go to court knows that just to open the file is $500 minimum.
Mr. Cutler: I was thinking of a new lawyer.
Senator Joyal: If you go to see a new lawyer, he or she will have to learn the legislation because it is complex. He cannot just give you an opinion outright, unless he is a specialist. If you go to see a specialist, the costs are double.
The only thing you might get is a warning by a lawyer to tell you exactly your rights under the legislation. You will not get much more than that for under $3,000, on the basis of my own experience.
Mr. Cutler: My suspicion is that you will not get even that. It is an amount that is woefully inadequate. I fully agree and I stated that at the outset.
Senator Joyal: What option would be left to the person? Would it not be to go to the union representative and try to get the support of the union in order to get assistance? On the basis of $3,000, there is not much you can expect.
Mr. Cutler: That can be done; but in many cases, the union is in a conflict of interest where it might be two employees who are members of the union and they will not provide a lawyer to one and not to the other. Or they might have gone through the normal union channels and the litigation is the next route, if it is going to go further. In that case, the union may make a decision not to support the person leaving them on their own. The support is not automatic.
This is money that is needed when the person has to pay it out of his or her pocket. The union may say it will help. In my particular case, when I had to testify for the House of Commons committee and for Justice Gomery, the union paid for a lawyer to help me organize my thought process. That does not happen to everybody and it is probably the exception. Unions do not have unlimited resources. Government has unlimited resources.
A discussion came up about whether I should even consider suing the government, which I am not inclined to do. My lawyer said that for every dollar I would spend, the government would easily spend $20 and would not worry about it. I would go broke trying to defend myself, so do not even bother considering it. That is the way of the situation.
Ms. Gualtieri: You raised again an excellent point. The unions would say this is not in the collective agreement. They are taking a very narrow view of what they will get involved in. They will say that this is not in the collective agreement, which it is not, and therefore they have no jurisdiction and they will not do anything.
I would suggest to you, senator, that what you have identified is that the person will be in a legal vacuum.
It breaks my heart to see these people, to get the calls. My husband takes the calls when it is somebody who speaks French because he is so close to the issues. It breaks my heart to see them on their own with nowhere to turn. They have no advocate.
I have been in the court when there have been eight lawyers, including from the law firm I used to work at — Gowling and Henderson — and then the government lawyers against me and I have my one lawyer. For one day alone, they asked me for $378,000 in court costs for a one-day motion. I have hundreds of thousands of dollars in legal costs.
This is surreal what has been proposed for legal counsel. It is an insult. To clarify, $3,000 is in the exceptional cases; the norm is $1,500.
Senator Joyal: I concur with you. I had the recent experience of going to the Supreme Court to support the contention of Mr. Vaid, who was suing the House of Commons for wrongful dismissal. I went at the Supreme Court level two years ago and, believe me, it cost more than $3,000 to support the contention of somebody who had been fired unjustly.
I fear that this is just what I would call a principle support; it is not based on the real cost of the legal system in Canada at all.
Ms. Gualtieri: It does nothing to level the playing field.
Senator Joyal: My next question refers to page one of your brief. It is the fifth and most troubling out of all of five shortcomings you have raised regarding this bill:
It does not ensure corrective action to end wrongdoing. There are some reporting mechanisms, and some powers punish those responsible for retaliation against the whistle-blowers. But there is no order power to ensure that the original wrongdoing is corrected.
That is the end of the story. After all those endeavours, efforts, risks and back-and-forth negotiations, as Mr. Cutler has mentioned, at the end the denunciation stays on the table and it is not being acted on. Why bother if, at the end of it, there is no confirmation that somebody will act on what you have just said? As you said, it is the snake that bites its tail.
Ms. Gualtieri: It destroys the raison d'être for the act. Referring back to the promises made in Stand up for Canada, the first point was to give the public services integrity commissioner the power to enforce compliance with the act. Something has broken down because this was not done. There is no order power on corrective action. Recommendations can only be made to Parliament. That is all the Auditor General can do and that is why year after year we have grave transgressions. This is a serious failing.
They found in the States that the failure to have corrective action taken is sometimes even more compelling for a person not to speak up. People are prepared to take the personal risk but if they say nothing will change, why bother.
Senator Joyal: Exactly, if the person does not have any certainty that, at the end of the day, a corrective measure will be taken, why run the risk of getting involved personally, emotionally and with your friends and family? Why then run the risk of having to incur legal costs and fees or fighting for your reinstatement if you are the object of retaliation, only to have, at the end of the day, no one acting on what you have rightly denounced? A reasonable person put in that situation would say, "On balance, there is no gain in the system, so I will turn the page and move on."
Mr. Cutler: No one described us as reasonable people. We believe things can be fixed even after years.
Senator Joyal: What would you suggest?
Mr. Cutler: One has to have the power of compliance. You mentioned the stress and the strain; I would not have got through it if my wife had not been the only support I had because I could not tell anybody that I knew. Most whistle-blowers are not necessarily worried only about themselves. They want the situation fixed and my understanding is that as long as there is denial of the problem — as that leaves the person sitting out there in the cold — it cannot be fixed. Some of the problems I am aware of have been going on for more than15 years. Ms. Gualtieri and I went through the situation at different times, but in a similar time frame. The whole support structure for whistle-blowing was totally unknown. For the first time, we are able to help people and talk to people and give them some idea of what happens; they do enjoy talking to somebody else who has been through it.
Ms. Gualtieri: It is such an important point. It is not yet clear in my mind what the modality is to have corrective action taken. This is a complex issue. How do you order a government? How do you order a minister? How do you have an appointee order elected officials? With all the brain power around this committee and your resources, it is something you have to turn your mind to; it must be done.
At the very least, the statute has to put a clause in whereby the minister of the department has to take corrective action and report to Parliament that he has and if he has not, then why not? If it puts a duty on the minister, and he does not do it, it will be a statutory breach with consequences that can follow. That, however, has not been done in this act.
Mr. Cutler: There must be an outside audit system to ensure that the information given to be corrected has been corrected. Somebody must confirm that action has been taken.
Senator Day: First of all, I would like to thank you very much for being here. This has been quite moving testimony. I know that this whistle-blower legislation has been developing, been worked on and there have been committees and commissions looking into this for five, six, possibly 10 years. Hopefully, some of the information you bring to us today will be reflected in the legislation.
My colleague Senator Cowan has made a good point that this has been passed already by the House of Commons. It is here with us. Senator Milne made the point that we do not have a lot of choices but we have choices with respect to amendment. This bill is huge and your words are wonderful. With your permission, I might quote these another time, Ms. Gualtieri.
You say this bill is "an excessively large, complex and badly written document." You go on to say, "This places an impossible burden on the committee to develop the numerous amendments required to clean up the mess."
Ms. Gualtieri: I have to tell the truth, Mr. Hutton wrote it.
Senator Day: These are wonderful words, Mr. Hutton.
Mr. Hutton: Thank you. I have to say Ms. Gualtieri approved it.
Senator Day: This is the first day we have had a chance to deal with the whistle-blower part of this. We have been working on this bill for three weeks. During this time, members of the House of Commons and other senators were away on their summer break, so this group sitting around this table is committed to work on this. We are looking for the must-amendments that will make this legislation better.
I would like to address the points that you have made to clarify and ensure we have a consensus on your evidence, and perhaps clarify a couple of points made by Mr. Keyserlingk this morning.
There is a five-year review built into the original legislation, which is Bill C-11, passed a year ago in November, but has not been proclaimed into enforce.
Now we have Bill C-2 coming along and making amendments to a bill we have no experience with yet. Mr. Cutler is probably happy with that because he could not live with the other one but now, reluctantly, he can live with this piece.
Mr. Keyserlingk liked the amendment that creates the tribunal, which was not there before, because he said it expanded the mental process that is going to be applied to the reprisal test.
Do you accept that or would you prefer not to have this tribunal involved and just leave it to the courts?
Mr. Cutler: I prefer the tribunal. What I would like to see with the tribunal is at least an outside resource who might understand the issues and not just legal minds. A lot of the issues are not legal: The pain and suffering a person undergoes is an aspect that a justice could not possibly appreciate if they have not been through it. Thus the justice has led a privileged life according to the whistle-blower's viewpoint.
I would like to see that expanded. When I testified at the House of Commons committee, I said that I would like to see additional resources. I do not have a problem with the justices being the majority on it, but I believe a viewpoint of other experts in the field that can bring knowledge of the issues to these people is needed.
Ms. Gualtieri: I want to be clear: I am a lawyer but I do not practice as a lawyer. It is probably one of the last places where you will get justices pursuing litigation. It is just so difficult.
Why would we take away the right to go to court? Whistle-blower legislation should be additive. It should not take away.
We can try establishing a tribunal. We must remember that the Canadian Human Rights Commission, which is a tribunal, has collapsed into disarray. There have been whistle-blowers in the Canadian Human Rights Tribunal. It was probably one of the most robust ones in Canada. The public service staff relations board, which is the predecessor of the tribunal for public servants, has become the bane of public servants: People have gone there, got an order and departments have just ignored it. We do not have a good historical track record with tribunals.
It is a small point. It is a nuance, but if you check Bill C-2 you will see that the integrity commissioner is appointed by the Prime Minister but goes through an all-party vetting. The judges on the tribunal are appointed by the Prime Minister but do not go through an all-party vetting. I find that curious. Why the commissioner and not the people appointed to the tribunal? Remember that the optics of this are important. We can try a tribunal, but I believe that the people should always have the option, the residual option of seeking relief in court.
Senator Day: Mr. Kilgour, you are aware that the tribunal is of serving judges. You have heard Ms. Gualtieri's comment. Maybe one judge to chair this? You have seen this on other tribunals where you have other expertise that you bring in. What is your view on this provision that absolutely requires all members of this tribunal to be judges?
Mr. Kilgour: Having spent a lot of time with juries, I am very much of the view that you have people who come from society — I come from a long line of judges in Manitoba — and I think judges lose touch. I would like to see a variety of people sitting on the tribunal. The fact that Ms. Gualtieri wants to keep the right to go to court after what she has gone through for nine years is an eloquent defence of preserving the right to go to court.
Senator Day: I agree with you, and I believe there are some heroes here, referred to by both of you, that we should acknowledge. These heroes — some of whom are here today helping you — are your spouses, your friends who offered you the other job and have been supporting you, and your parents. It is critical that they be acknowledged and we do appreciate their support.
What you are doing is critical to many people. Most of us have had some exposure to being a public servant that is being isolated. We know how psychologically devastating that can be. You have explained it very well and, Mr. Cutler, you were fortunate in having a friend that stuck his neck out to offer you a position to get you out of the isolation.
Mr. Cutler: I will always agree with that comment.
Senator Day: There is nothing wrong with mentioning the friend's name when he has done that for you.
I understand now the four points that you have made, or the three major points you want us to focus on, Mr. Cutler. A number of my colleagues have asked clarifying questions but, to clarify the record, when you made your presentation you talked about $3,000 and $6,000 for legal support. It is $1,500 and $3,000 as a back-up.
Mr. Cutler: My error. I was doing it by memory.
Senator Day: Your written submission has it correctly, but I wanted to correct the record on that. The $25,000 is new. We did not know about that before.
It is an insult to see $1,500 there. Would it be better to leave it to the discretion of the commissioner to determine and provide the amount of legal fees? Would you feel comfortable with no specific amount being stated?
Ms. Gualtieri: What should be put there is that they will be provided with counsel. Again, we will have to determine the precise mechanism that will be used.
In the U.S., they have the Office of Special Counsel. They have to be provided with counsel; they cannot go up against government without having legal counsel.
Mr. Hutton: This is a lay idea; I am not a lawyer. When I look at this and wonder how the playing field might be levelled, surely it could be by giving the whistle-blower access to the same pot of money that is being used to persecute them. I would like to see the whistle-blower's counsel paid out of the budget of the department that has been assailing them and give them the same budgetary limits as their own legal team.
Senator Day: That is an interesting concept.
Mr. Cutler: By the way, the $25,000 would not cover that because it is only for the person who may be accused, not the departmental budget that they bring to bear. It would be far more money that would be available to a whistle-blower and it would help level the playing field.
Senator Day: The pain and suffering was obvious in both of your comments in recounting. I am glad Senator Stratton asked you to recount your specific histories because that told us an awful lot and makes you even more the heroes in this instance. That pain and suffering that you have been through over the five, eight or 10 years — whatever time each of you have been involved — could that possibly be compensated with a $10,000 tribunal offering?
Mr. Cutler: You could never compensate it and $10,000 does not compensate it at all. I do not know how you could compensate it. I do not know that money could ever compensate, to be honest.
Ms. Gualtieri: Could I comment on that? It is another provision in the bill that is an assault on public servants.
Why cap general damages? In fact, when we give you the amendments you will see, the remedy that should be provided should be damages, whether they are exemplary, compensatory or punitive. However you cannot get punitive damages against the government because they have already protected themselves in that way. Regarding other damages, why set out a list and enumerate a limited scope? I am confused at what a person will really get. This list is not clear to me. I believe we will see litigation in trying to determine what is available.
Let us just look at the cap on general damages. It does not reflect what is happening in the legal world. There was a decision a few months ago; an RCMP officer who was harassed for two years, which is a shorter period of time than a lot of whistle-blowers in the federal government, her general damages were $125,000. How do we think we will get a first-class public service by giving them second-class rights? It is a contradiction and a betrayal.
Senator Day: There are a number of instances in other areas where there are specific amounts non-indexed. In five years what will $1,500 be worth? There are a number of those. We will have the opportunity to ask the minister when he appears on some of these issues, but I wanted to have your comments because that helps us in asking the minister what the policy reason is behind putting these specific non-indexed figures in here. Are we trying to create the illusion that something is being put in there to help people? Is that why this is there? We will find that out.
Ms. Gualtieri: That is an excellent point.
May I just add that you can never really compensate. I am 45 years old, and I have two young children, one and three years old. I am very fortunate, at this late stage, to have been blessed with the opportunity. This is a very personal point, but my fertility years were closing in and I was involved in this debilitating struggle. I know women who have been foreclosed because they dedicated themselves to the public interest and then the pursuit of justice. The fact is that they simply missed the boat.
This is the reality of what happens. It is cruel and unusual punishment. We do not like it hear it, but we must in order to know what steps must be taken.
Mr. Cutler: I have one more point. That is clause 21.7(1), and then it goes from paragraphs (a) to (f). This is very important. You referred to $10,000. Clause (e) says "or (f)." Each one of these is exclusive of the other ones; they are not inclusive. I made the same comment House of Commons. It should be "and/or" or it should be "and." It should be inclusive because a lot of these things are separate. It is a fallacy to say that if it is $10,000, you cannot get the rest.
Senator Day: I would like confirmation that there is agreement. You have suggested, Mr. Cutler, that the tribunal should have the right to award legal costs. Is that point included in your documentation?
Mr. Cutler: I do not think it was legal costs, but certainly the tribunal should have a right to award what is needed or make recommendations on what is needed and see rectification take place. It does not always have to be financial.
Ms. Gualtieri: Senator, I would direct you to proposed section 21.7(1)(e) on page 154 of the bill, which states that expenses will be covered. I must make an important point here. This is once you get to the tribunal, but what about expenses when you are just at the commissioner level or even before the commissioner level?
The Chairman: That is a good point.
Mr. Cutler: It covers expenses "or" the $10,000; it does not give both.
Senator Day: That was the same proposed section Mr. Cutler was referring us to. That information is very helpful.
Mr. Cutler: I would like to see that amended.
The Chairman: Honourable senators, we are out of time. There are four senators who have supplementary questions. I intend to let them all ask their supplementaries.
Senator Stratton: With a time limit, please?
The Chairman: I trust honourable senators. We are out of time.
Senator Day: It has been three weeks now and we have not imposed any time limit.
The Chairman: I intend to let all four senators ask supplementaries. I will start with Senator Milne.
Senator Day: I was going to suggest that if we are in that much of a time constraint, why do we not ask these witnesses to come back another time?
The Chairman: We are not in a time constraint.
Senator Stratton: We are not talking another two hours; we are talking about 15 minutes.
The Chairman: I have not had a chance to ask a question, but there is no senator who is on a supplementary who has not had an ample opportunity to put a number of questions to these witnesses. However, they have asked to have supplementaries and they will have the opportunity to have supplementaries, starting with Senator Milne.
Senator Milne: My question is brief.
Mr. Cutler, you spoke of the Sarbanes-Oxley Act in the United States. Would you suggest incorporating parts of that act into Bill C-2, since you claim it is the best legislation in the world?
Mr. Cutler: Ms. Gualtieri said it was the best legislation in the world. I would like to see a separate bill that covers everyone in Canada, not just federal employees. That is where you need to go, namely, a second bill.
Senator Campbell: I spent a lot of years as a coroner. I have listened to your stories. This is a grief process that you are in. At the end of the day, I hope that you find legitimate and just closure because you certainly deserve it.
I would like to leave with you this thought from French philosopher Blaise Pascal:
Justice and power must be brought together so that whatever is just may be powerful, and whatever is powerful may be just.
Senator Joyal: He wants to remain on good terms with me.
Senator Cowan: I wanted to quote from the document entitled Stand Up for Accountability, the Conservative Party of Canada federal election platform with which some of us may be familiar.
One of the pledges contained in that document was the comment that a Conservative government will:
Require the prompt public disclosure of information revealed by whistle-blowers, except where national security or the security of individuals is affected.
We have not really talked about the disclosure or non-disclosure section. I know you have commented in the other place about that section. I would like your comments on the adequacy or inadequacy of Bill C-2 as it affects that particular notion of disclosure information.
Ms. Gualtieri: That promise has been betrayed. We never expected proposed section 55 to put a clamp down on information. In fact, I advocate that not only should the information be accessible under the Access to Information Act, but it should be deposited in a public registry. Management has to get over the knee-jerk reaction to hide everything. This is particularly true when dealing with public resources and public stewardship. What has been done is unacceptable. The information must be made public.
As for information, and there is a person here today, Brian McAdam, who suffered terribly as a result of speaking out at the Department of Foreign Affairs. The RCMP officer who took up his cause just lost his latest round at the Federal Court of Canada and will be seeking leave to appeal to the Supreme Court of Canada. They claim secrecy on all their information. I am suggesting that even for cabinet confidences and information of national security, there must be a way to disclose that information. It should be disclosed to Parliament and to law enforcement. As we know, in the United States it is vital to have that information.
This pledge has not been met and we have moved back into an Orwellian state.
Senator Stratton: I would hope that you have your eyes glued to the television when the officials come back before this committee, because what have you said in many instances is quite inflammatory in the sense of some of the wording that you have used. I expect that, hopefully, the officials will respond, not in kind, but in defence of their position. For every one side, I think there is another. We owe it to them to hear their case as to why they did not fulfil what you perceive as the government's promises at that time. I would expect to hear from them; at least, I would like to hear from them.
With your indulgence, I would ask for your patience, and please watch.
The Chairman: To our four witnesses, I would like to say that you have been participants with us in what has been a powerful, emotional, meaningful and very special session of this Standing Senate Committee on Legal and Constitutional Affairs. Thank you very much.
The committee adjourned.