Whistleblower Legislation Amended, Still Flawed -&- Prominent Whistleblowers

Hansard: Oct. 4, 05 Public Servants Disclosure Protection Act

The House resumed from October 3 consideration of Bill C-11, An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, as reported (with amendment) from the committee, and of the motions in Group No. 1.

Mr. Gurmant Grewal (Newton—North Delta, CPC): Mr. Speaker, I am pleased to rise today on behalf of the constituents of Newton—North Delta to participate in the report stage debate on Bill C-11, the public servants disclosure protection act. Bill C-11 creates a procedure for the disclosure of wrongdoing in the federal public sector. If enacted, this bill would finally give Canada whistleblowing legislation, something other nations have had for decades.

When we look into the background of the bill, we see that this government has had 4,350 days to fulfill its promise and introduce effective whistleblowing legislation. That is how long this government has had.

The former government House leader, the hon. member for Glengarry—Prescott—Russell, said in 1992, while in opposition, “Public servants must be able to report about illegal or unethical behaviour that they encounter on the job without fear or reprisal”. In his speech, the hon. member then went on to quote a Liberal caucus-approved document, “Public Sector Ethics”, calling for whistleblowing legislation.

However, once secure in office, the Liberals quickly forgot about their promises. In the end, it took the sponsorship scandal for this weak-kneed government to dust off its decade-old promise.

Meanwhile, we have witnessed billions of taxpayers' dollars disappear. The sponsorship scandal could have been avoided or at least quashed years ago if whistleblowing legislation had been in place. The same holds true for the HRDC boondoggle, the George Radwanski affair, the gun registry cost overruns and so on.

Public service integrity officer Edward Keyserlingk, referring to the sponsorship program scandal, said that whistleblowing legislation could have saved taxpayers millions of dollars by giving public servants “the confidence to come forward”.

It is little wonder no one blew the whistle on this scandal. In the absence of any whistleblowing legislation, even well-meaning public servants are reluctant to come forward because they know that making trouble will be a career ending move.

This government claims to support whistleblowers, but its actions indicate otherwise. Let us look at the case of the three scientists from Health Canada who were fired in June 2004: Margaret Haydon, Shiv Chopra and Gérard Lambert.

They were among this country's most outspoken whistleblowers. They raised issues such as the safety of a bovine growth hormone proposed for use in dairy herds to boost milk production, the influence of corporations in government drug approvals, and the need to keep animal parts out of the feed supply to keep beef safe. All three were fired on the same day for undisclosed reasons, which, Canadians were told, had nothing whatsoever to do with their whistleblowing. The government must think Canadians are hopelessly naive.

The Liberals have been boasting about Bill C-11 and everything they are doing for public servants who disclose wrongdoing. However, firing dissenting research scientists sends another message. It tells public servants that debate is discouraged in the federal government and no one's job is safe.

As far as Bill C-11 is concerned, in its original form the bill would have done more harm than good for whistleblowers. However, after a lot of hard work by Conservatives in committee, some of the major flaws have been corrected.

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I do not want anyone to get me wrong. The bill is still far from perfect but thanks to the pressure applied by the Conservative Party, the government has relented and tabled amendments to create an independent commissioner to hear and investigate disclosures of wrongdoing. This was an essential change to the proposed legislation.

Other amendments have not been forthcoming, including: having the commissioner report directly to Parliament instead of to a minister; prohibitions of reprisals against those who make disclosures of wrongdoing to the public, media, police or anyone outside the narrow process prescribed in the bill; elimination of provisions to change the Access to Information Act to allow departments to refuse to release information about internal disclosures of wrongdoing for five years; and, the bill would still allow cabinet to arbitrarily remove government bodies from protection under Bill C-11.

The bill represents an improvement over the status quo but it remains clear that the government is more interested in managing whistleblowing than protecting and encouraging public servants who uncover evidence of wrongdoing.

It would be interesting to know if there could have been a better way to protect whistleblowers. Like the members for New Brunswick Southwest and Winnipeg Centre, as well as Senator Kinsella, I have for years been lobbying for a strong whistleblower protection. In October 2000, I introduced Bill C-508, the whistleblower human rights act, which was probably the first bill introduced in that session about whistleblowing protection.

My legislation, drafted with the help of actual whistleblowers, including Joanna Gualtieri, Brian McAdam, Robert Reid and many others, would have given people the confidence to come forward but the Liberals could not muster up the courage to support an opposition member's bill.

When the bill finally came to a vote in February 2003 as Bill C-201, because I had reintroduced the same bill, government members refused to lend their support to my initiative. If the government had been sincere about whistleblowing, Liberal members would have voted differently that day. We know the government did not want to pass the bill at that time. Instead, it revealed how phoney its promise had been.

The last time I participated in the debate on Bill C-11, I highlighted a good comparison of my bill, which was drafted by whistleblowers, to Bill C-11 at that stage. There was a big contrast. Many members on the Liberal side were nodding their heads in favour of some of the things that I was proposing in my bill.

The government needs to do more to encourage the reporting of wrongdoing and should stress that it is an important civic responsibility. In fact, it should be the stated duty of every employee to disclose any wrongdoing that comes to their attention.

Based on the experiences of the whistleblowers I have met, their careers and personal lives have been devastated. I believe an employee who has alleged wrongdoing and suffers from retaliatory action as a consequence should have a right to bring a civil action before a court. As well, allegations of wrongdoing should be rewarded like in California where whistleblowers are entitled to 10% of the money government saves as a result of their vigilance.

It is vital that the threat of employer retaliation be eliminated to encourage government employees to speak up. This will assist in curtailing the misuse of taxpayer dollars. Every day there seems to be new reports of corruption and scandal with the government that could be eliminated.

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When I blew the whistle on whistleblowing, the Liberals had their ears plugged. Four years ago, in the face of government opposition, I introduced legislation which the Liberals refused to support at that time. Now is the time they should be serious about making this bill effective. Since it was first introduced some important amendments have been made but it is still flawed. I think we will let it pass so that a Conservative government will have the opportunity to make it stronger.[. . . . ]

MP Nina Grewel, CPC, on Whistleblower Legislation

Hansard: Oct. 4, 05 Public Servants Disclosure Protection Act

Mrs. Nina Grewal (Fleetwood—Port Kells, CPC): Mr. Speaker, I will be sharing my time with the hon. member for Newton—North Delta.

I am pleased to rise on behalf of the constituents of Fleetwood—Port Kells to speak to Bill C-11, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.

Canadians have been waiting for a long time for effective whistleblower legislation. Countries around the world have had whistleblower legislation for decades, protecting public servants who take their oath of protecting the public interest seriously.

Indeed, one wonders that if there had been whistleblower legislation years ago, we may not have had a sponsorship scandal. Who knows how much taxpayers' money could have been saved. Instead, it ended up in the coffers of the Liberal Party.

Unlike the Liberal Party, the Conservative Party has always supported effective whistleblower legislation for public servants who expose wrongdoing, corruption, waste and mismanagement.

Bill C-11 fails on a number of levels, including its enforcement apparatus, its procedural scope and its transparency mechanisms. Before voting to support this bill, I would like to see amendments made to correct these glaring deficiencies in the bill.

First, as it stands, the bill's creation of an independent commissioner to oversee whistleblowing complaints is flawed.

As was the case with the previous Ethics Commissioner, the independent commissioner will report to a minister and not the House of Commons. Past experience with ministerial reporting has not endeared anyone to the process. In fact, in the case of whistleblowing, which could easily implicate political appointees, party workers and/or elected government officials, there is nothing worse than having the commissioner report to a cabinet minister who is often beholden to these interests. An enforcement apparatus must be put in place that avoids reporting to cabinet.

This is clearly a case of the fox guarding the hen house. An independent commissioner reporting to Parliament would be freer in his or her assessments and also more likely to avoid the subtle and structural procedures and biases of cabinet and ministerial authority. Why after 12 years of Liberal rule would we trust a system that furthers ministerial power over whistleblowing?

Rather, we should be making every attempt to make the independent commissioner's office truly transparent. Quite frankly, why should Canadians trust these Liberals to guard themselves, when in the past, they have proven themselves so capable of being untrustworthy?

Second, an independent commissioner responsible to Parliament would further decentralize power from the Prime Minister's Office. As we saw in the sponsorship scandal, power concentrated in one area tends to be abused. Or as Lord Acton most famously said, “Power corrupts, and absolute power corrupts absolutely”. Lord Acton's words are just as applicable today as yesterday.

Part of the need for whistleblowing legislation is that power has been centrally concentrated in the Prime Minister's Office, leading to cronyism and control. By having the independent commissioner report to the House of Commons, we can further erode the incredible power of the Prime Minister's Office, promoting greater transparency, accountability and democracy.

However, democracy has not been this government's strong point. In fact, the Prime Minister came into office promising to slay the democratic deficit. We have seen in this House the exact opposite: confidence votes ignored, excessive nannying of the Prime Minister's Office, appointing Liberal hacks to the patronage appointments and absolutely no movement on democratic and electoral reform.

Bill C-11 furthers this trend by not prohibiting reprisals against public servants who bring their complaints through procedures other than the ones spelled out in the bill. Those who go through the media, police or Auditor General all face the possibility of disciplinary action under this bill. Far from opening up government, this aspect of the bill places undue restrictions on public servants and could continue a climate of secrecy in the public service.

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A Conservative government would provide broad protection for civil servants in all areas of disclosure, including the media. The media's role in any democratic society is to act as a check and balance against excessive government authority and control. While we would all think that at various times the media has failed in its role, by eliminating the ability of public servants to go to the media we further erode the checks and balances of a free and democratic society. Accountability and transparency demand that public servants be allowed media disclosure.

There is nothing to keep politicians more accountable than the prospect of headlines screaming scandal and corruption, as the former head of Canada's Mint has recently discovered. Accountability through the media is a key component of any whistleblowing legislation and a Conservative government would ensure that it was included in the bill.

Transparency is further eroded by the scope of the bill, which excludes several crown corporations. There is simply no excuse not to include all government agencies. As we saw at the Mint under former Liberal MP David Dingwall, crown corporate heads often feel themselves outside the purview of Parliament and end up spending taxpayers' dollars wildly. We cannot allow this to happen by excluding certain agencies.

Transparency is also jeopardized by the time allowance for departments to refuse to release wrongdoings for over five years. Frankly, five years is too long. With such a provision in place, the sponsorship scandal would still have taken place even if it had been reported by dutiful public servants. The Liberals could have continued to keep a lid on the scandal while claiming to be ethical in government.

Such a scenario is completely unacceptable. It seems the Liberals have learned nothing about ethics in government over the last two years. While the Prime Minister is good at ethics rhetoric, when we look below the surface we see the same Liberal solutions to Liberal-made problems. It is not surprising that the solutions turn out to be no solutions at all.

Whistleblowing legislation is an important component to any reform agenda. However, it is one piece of the puzzle. Well crafted whistleblowing legislation provides transparency and accountability, but it does little to address the systemic and structural problems inherent in our present parliamentary system. For that we need a clear focus on system-wide reform measures, such as parliamentary confirmation of judges and heads of crown agencies, electoral reform, and Senate reform.

What we clearly need is leadership on both democratic reform and ethical government. We have had leadership on neither issue from the Prime Minister and I fear we never will. The only way to truly bring honest government to Canada is by implementing a broad range of democratic reforms, something a Conservative government will be more than happy to do in the not too distant future.

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Search this site for whistleblowers mentioned below; earlier this year some testified before Parliamentary Committees. Mainstream media are not likely to publicize their stories.

Prominent Whistleblowers  (1250)

Mr. Gurmant Grewal (Newton—North Delta, CPC): . . . . Rather than rewarding whistleblowers, like governments do in the United States and many other countries, the Liberals have bullied whistleblowers, intimidated them, harassed them, fired them, and ruined their professional and personal lives. The Liberals have always believed in secrecy, confidentiality and cover-ups rather than transparency, accountability and corrective actions.

Let us take a moment to remember some well publicized whistleblowing cases. Bernard Dussault, the chief actuary of the Canada pension plan, reported that he was asked to modify numbers to paint a more positive state of the CPP. He was fired from his job.

Michèle Brill-Edwards, senior physician in Health Canada's prescription drug approval process, was pressured to approve medication that had caused deaths in the United States. She went public. She had to resign from her job.

Joanna Gualtieri, DFAIT portfolio manager for Latin America and the Caribbean at the time, blew the whistle on waste and lavish spending on diplomatic housing and embassies. The inspector general and the Auditor General later supported her allegations. She was harassed and marginalized within the department. Finally she had to quit and go through the expenses of court, her career completely ruined.

Marilla Lo, senior analyst at the Treasury Board, claimed abuse and harassment, including discrimination for promotions, layoffs, and abusive management practices. She was ultimately fired from her job. Of course she later won a wrongful dismissal suit, but was then forced into retirement.

Brian McAdam was a 25 year veteran foreign service officer, an honest officer in Canadian diplomatic missions in the Caribbean, Europe, the Middle East, South America and Asia. In 1991 he documented evidence of corruption at Canada's foreign mission in Hong Kong, real evidence, which I have mentioned in my earlier speeches. He was demeaned and ostracized by his colleagues. He finally gave up and had to take early retirement.

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Michael Sanders, a financial analyst with the Office of the Superintendent of Financial Institutions, blew the whistle on the absence of sufficient safeguards to protect taxpayers against the collapse of major financial institutions. His fate was to be fired from his job.

Dr. Shiv Chopra, a senior veterinary drug evaluator in Health Canada's therapeutic products and food branch, blew the whistle on the drug approval process for bovine growth hormones, saying that human health concerns were being completely ignored due to pressure from drug companies. His fate was to be fired from his job.

There are many other cases, including those of Corporal Robert Reid of the RCMP, Dr. Margaret Haydon of Health Canada, Bob Stanhouse, again of the RCMP, and Dr. Barry Armstrong of the Canadian armed forces. The list goes on and on, but my time is limited.

Canada is well served by professional and independent public servants, who are often the first to spot problems such as those in the sponsorship scandal. They know when their department has been told to suppress test data. They know when someone is submitting inflated travel expenses or phony invoices or when the work is not being done but the invoices are being submitted. They know what laws they are supposed to enforce and they know when they are not being enforced.

However, federal public servants who disclose wrongdoing in the workplace have little or no recourse if their manager chooses to retaliate against them. Bill C-11 proposes an improvement over the status quo, but it is far from protecting the real whistleblowers and it is not nearly as effective as legislation in other countries.

Five years ago, in the face of government opposition, I introduced legislation to protect bureaucrats who reveal wrongdoing in the workplace. In 2003 the Liberals refused to vote in support of my private member's bill because they did not have the political will to introduce any effective whistleblower legislation. They simply lacked the political will, and that is well reflected in Bill C-11.

When I blew the whistle on whistleblowing, the Liberals had their ears plugged. My private member's bill, Bill C-201, was debated in the House. It was written with the assistance of real-life whistleblowers, many of whom I have named before. They have suffered harassment and reprisals for doing what was right, for doing what was in the best interests of this country but not the Liberal Party.

One whistleblower, Joanna Gualtieri, was of great assistance. She founded the institution called FAIR. Ms. Gualtieri has highlighted a number of points that must be included in whistleblowing legislation if it is to be effective. The following points were included in Bill C-201 but are not found in Bill C-11.

First is full free speech rights. Protected whistleblowing should cover any disclosure that would be accepted in a legal forum as evidence of significant misconduct or would assist in carrying out legitimate law enforcement functions. There can be no loopholes for this one.

Second is to permit all disclosures of illegality and misconduct. Whistleblower laws should cover disclosures of any illegality, gross waste, mismanagement, abuse of authority, substantial and specific danger to public health and safety, and violations of policies, rules and conventions. They are missing from this bill.

Third is the duty to disclose illegality. It is also missing from the bill.

Fourth is that the coverage under the bill should extend to all personnel and affected communities. This is also missing.

Last, and of course, there should be safety from harassment after blowing the whistle.

Bill C-11 serves more as a tool to manage whistleblowing and rein in potential whistleblowers than it does to encourage disclosing wrongdoing. We need effective legislation that would really protect whistleblowers.

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