Hill Times: Advocates, MPs Point Fingers Over Delays to Long-Awaited Update to Canada’s Whistleblower Laws
This article features Government Accountability Project Legal Director, Tom Devine, and was originally published here.
Advocates and opposition MPs on the House Government and Operations Committee are accusing the Liberals of delaying a long-awaited update to the Public Servants Disclosure Protection Act hailed by some as a much-needed first step to improving Canada’s protections for whistleblowers. But NDP MP Gord Johns says some of the blame for the prolonged study of a private member’s bill falls on the Conservatives, who have eaten up valuable committee time focused on trying to find a scandal.
Introduced on June 16, 2022, by Bloc Québécois MP Jean-Denis Garon (Mirabel, Que.), Bill C-290, the Public Sector Integrity Act, seeks to amend the Public Servants Disclosure Protection Act (PSDPA) to provide a better foundation for the disclosure of misconduct in the public sector and the protection of whistleblowers.
While the act hasn’t been updated in the 17 years since it first became law, whistleblower advocates had been given hope that could soon change when the bill received second reading on Feb. 15, but their patience will have to extend until at least the fall for more progress. Over the course of three months and eight meetings, the bill failed to progress to the report stage and third reading as the Government Operations Committee’s (also known as OGGO) clause-by-clause deliberations were only completed a day before the House rose for the summer.
Committee member Johns (Courtenay–Alberni, B.C.) told The Hill Times that while many of the delay tactics originated from the Liberal members, he said that the Conservative members had “teamed up” with the Grits to defeat a number of amendments he said would have further improved whistleblower protections. These included establishing investigations standards consistent with accepted global best practices, and restricting disciplinary measures taken against public servants who disclose wrongdoing uncovered during the course of an investigation by the public sector integrity commissioner.
“Those amendments just reflected what we heard from the experts and advocates who testified at committee, but it’s not surprising that they voted against them,” Johns said. “The Liberals and their rich friends don’t care about whistleblowers, and the Conservatives will always prop up the bosses and not the workers, so this suits them quite fine.”
Additionally, Johns blamed the lack of more expedient progress on Bill C-290 on the Conservatives’ hyper-focus on the federal contracts awarded to McKinsey and Company, which has so far required 13 committee meetings, including one final meeting on June 21, the day the House rose for the summer.
“They’re so hellbent on McKinsey and trying to find some sort of scandal that we can’t even get to the broader study to look at the five more highly paid consulting firms,” Johns said.
Additionally, Johns noted that OGGO was the only parliamentary committee that failed to complete a single one of its nine studies before the House rose for the summer.
Conservative MP Stephanie Kusie (Calgary Midnapore, Alta.) pushed back on the idea that her party, or the committee’s parallel study of the federal contracts awarded to McKinsey, had anything to do with delaying the group’s C-290 work.
“They’re completely different issues,” Kusie said, adding that the bill had been allocated eight meetings instead of the original four, which would have only provided two meetings for witnesses and two for the clause-by-clause study. “I don’t buy that this has anything to do with the Conservatives.”
The only overlap between the two studies, Kusie said, had been the consistent Liberal roadblocks and refusal to provide the committee with the documents relating to McKinsey contracts that the Conservatives had requested.
“The Liberals’ unwillingness to release the documents we asked for is what is causing the delays,” Kusie said, noting that if the Liberals had wanted to fast-track either study, they would have.
Kusie said that while the Conservatives supported the bill, it was ultimately up to the Bloc Québécois members to overcome those hurdles, a task she says the NDP and Bloc made only more difficult with their own amendments to the bill.
“We’re pulling for the Bloc, but they could have made it much easier on themselves,” Kusie said, adding that, at times, it felt as if both the Bloc and NDP had made “the perfect the enemy of the good.”
In a June 19 op-ed for The Hill Times, David Hutton, a senior fellow at the Centre for Free Expression at Toronto Metropolitan University, accused the Liberals of attempting to filibuster the bill to waste time in committee until it died, laying much of the blame at the feet of Liberal MP Greg Fergus (Hull–Aylmer, Que.), the prime minister’s parliamentary secretary.
In an interview with The Hill Times on June 29, Hutton said Fergus had dominated much of the committee’s time during his appearances, despite not being a sitting member.
“He is taking up more airtime than anybody else, including the opposition,” Hutton explained. “He’s constantly doing things that work against what the bill is trying to accomplish, and I have to assume he’s acting with [Prime Minister Justin Trudeau’s] full approval.”
Hutton also said that, adding “insult to injury,” Fergus had attempted to “kick the bill into the tall grass” with a last-minute amendment which originally would have delayed the bill’s coming into force until two years after it received royal assent.
While the delay was reduced from 24 months to 12 after discussion at committee, there remain a number of steps the legislation will still need to take before that waiting period even begins, Hutton explained, estimating it will take another six to 12 months just to make its way through the Senate. Additionally, on Nov. 3, House Speaker Anthony Rota (Nipissing–Timiskaming, Ont.) ruled that Bill C-290 would require a royal recommendation to receive a final vote at third reading before it can even arrive at the Red Chamber.
“We took this work really seriously,” Fergus said. “We made an agreement to finish C-290 before we rose for the summer, and we did.”
Fergus added that anyone who had watched the recorded meetings or read the committee transcripts would agree that there had been “no attempt at delaying” by the Liberals whatsoever. Instead, they would find a government that had worked in “good faith” to strengthen the bill’s protection for whistleblowers, including introducing amendments to create a legal standard for disclosures and adding protections for internal departmental disclosures to allow referral to the tribunal by the public sector integrity commissioner, Fergus said.
“This is a fairly complex bill that touches many different aspects of different pieces of legislation, principally the PSDPA, and there were serious discussions that had to happen as to what some of the proposals would actually mean,” Fergus continued, adding that there had been plenty more discussions outside of committee meetings between the parties “to find consensus on a way forward to make the bill workable.”
“We were very clear that we want to strengthen protections for whistleblowers,” Fergus said, noting that as the PSDPA has not been updated in nearly two decades, the Liberals had also wanted to ensure their study was also thorough.
There was no attempt to delay or slow walk this study,” Fergus said. “Every intervention was for the purpose of coming to that conclusion quickly.”
Sean Bruyea, a former Royal Canadian Air Force intelligence officer and government accountability advocate, told The Hill Times that he would be less concerned by the delay if the committee had taken the time to consider substantive and meaningful changes like the ones proposed by witnesses and advocates who had testified at committee, including himself.
Bruyea, who appeared before the committee on May 1, has called the bill a “long overdue, vital, and desperately welcome first-step initiative,” but said he believes it should be expanded to include veterans.
Bruyea spoke out against Veterans Affairs in 2005 for its replacement of lifelong veterans’ disability pensions with a one-time lump sum. In retaliation, the government threatened to withhold his medical treatment and benefits.
In a June 30 interview, Bruyea said that while there are certainly other veterans who have relevant information on potential wrongdoing at Veterans Affairs, there may be others who could have information about mismanagement at the Department of National Defence, but who do not feel comfortable sharing it while in active service.
“Preventing [veterans] from having a voice in disclosing wrongdoing not only sells them short for their service and sacrifice, but it also sells our whole nation short in terms of the government that we claim to have,” Bruyea said.
Bruyea said instead of including his suggestions or many of the other improvements put forward by other witnesses, the committee had completely sidestepped those issues while much of its time was consumed by “housekeeping” modifications to the bill’s wording and format.
“Those sorts of delays are unacceptable without substantive changes,” Bruyea said. “This is a great opportunity to do something right, but instead, [we got] a lot of huffing and puffing about form over substance, and I think it’s highly reprehensible.”
Bill C-290 improves Canada’s whistleblower protections from ‘weakest’ to ‘merely ineffective, says American expert
Tom Devine, the legal director for the Government Accountability Project (GAP), an American non-partisan, non-profit organization offering support to whistleblowers, told The Hill Times that while the bill would make significant progress toward bringing Canada’s regime in line with global best practices, it isn’t enough to create the kind of credible protections for those who challenge abuses of power.
Testifying alongside Bruyea on May 1, Devine compared Canada’s whistleblower laws to a “paper-tissue shield” that “rubber-stamps retaliation in which any whistleblower support organization has a duty to warn whistleblowers against relying on.”
Devine also pointed to a global study conducted by GAP and the International Bar Association which scored countries on a list of 20 best practices determined to make a whistleblower law effective.
Of those 20, the study found Canada only complied with one practice, tying with Lebanon and Norway for having the weakest protections for whistleblowers in the world, behind Isreal, Hungary, the Netherlands, and Peru.
While Bill C-290 would bring Canada in line with eight global best practices, Devine said that would only bring the law from among the weakest to “merely ineffective, but in good company,” alongside Albania, Jamaica, Uganda, and Vietnam.
As for the concerns that expanding protections for whistleblowers might cause an avalanche of frivolous claims to the Public Servants Disclosure Protection Tribunal, Devine said that has “consistently flunked the reality test,” as even the most effective regimes had little effect on the inherent power dynamics between whistleblowers and those they seek to hold accountable.
While Hutton said that the odds of success would improve slightly due to the bill’s provision of a “reverse onus” on those accused of retaliating against a whistleblower, that provision would be withheld from those whose cases had been referred to tribunal by the public sector integrity commissioner.
“Unless a new commissioner starts referring a much, much larger number of cases to the tribunal, this bill isn’t going to shift the goalposts very much,” Hutton said, noting that over the course of its 16 years in operation, the commissioner has only sent eight cases to the tribunal, three of which were related to the same whistleblowers. Additionally, the tribunal received zero cases between 2018 and 2022.
On June 7, Trudeau (Papineau, Que.) announced Harriet Solloway as his nominee to be the new public sector integrity commissioner. Solloway will take over the role from outgoing commissioner Joe Friday on Sept. 27.
During her June 14 and June 21 appearances before OGGO and the Senate, respectively, Solloway—an accomplished legal expert in international, humanitarian, and criminal law with experience at the International Criminal Tribunal for Rwanda, the International Criminal Court, and the United Nations—repeatedly declined to comment on the bill, explaining that she would need the first 100 days on the job to fully understand which issues need to be addressed.
Hutton said he would keep an “open mind” until that transition period is complete.
“I think it’s fair for her to refuse to speculate on what she’ll do in the future, but we’ve seen signs that she has given whistleblowers the sort of treatment that they ought to have in the past,” Hutton added.
Bruyea said Solloway would have an “uphill battle” to be the commissioner that advocates like himself hope she will be, but said it would be a lot easier of a climb if she is provided with the proper toolbox in the form of a renewed PSDPA.
In response to a request for comment, current commissioner Friday declined to comment further on the bill beyond the testimony he already provided to the committee and the 16 recommendations he shared during the 2017 review of the act.
While the act was not amended at the time or since to address those recommendations, Friday’s office told The Hill Times that he still supports them, noting that Bill C-290 addresses six, including the removal of the good-faith requirement for both disclosures of wrongdoing and reprisal complaints, as well as the reversal of the burden of proof at the tribunal.