Danielle In The House, October 24: Public Interest Disclosure (Whistleblower Protection) Act

Ms Smith: Thank you, Mr. Speaker. On October 23 I gave a member’s statement detailing some of the things that I thought the government had copied from our Wildrose platform, and I celebrated their inclusion of whistle-blower protection, which was found on page 42 of the Wildrose campaign platform. Unfortunately, I was celebrating too soon because even when the government does attempt to adopt what should be good policy, they do sometimes manage to find a way to implement it in a way that doesn’t quite do the job. So we have before us Bill 4, the Public Interest Disclosure (Whistleblower Protection) Act, which, I’m saddened to say, is a rather flawed piece of legislation that I cannot support without significant amendments.

I do want to give a bit of history about how it is that we got to where we are today, and I can’t do that without acknowledging my colleague the hon. Member for Calgary-Fish Creek, who over a year ago began the process of putting motions forward to urge the government to adopt whistle-blower legislation. She was even in the process of developing her own private member’s bill, which would have been introduced in the spring session. I am, having looked at this legislation, kind of wishing the government had held off and waited for the hon. Member for Calgary-Fish Creek to put forward a better bill because I was quite surprised to hear, when the bill was released, my hon. friend say that the government had not worked at all with the Federal Accountability Initiative for Reform, or FAIR.

FAIR is a registered Canadian charity that is run by volunteers and supported by individual contributions. It promotes integrity and accountability within government by empowering employees to speak out without fear of reprisal when they encounter wrongdoing. Its aim is to support legislation and management practices that will provide effective protection for whistle-blowers and, hence, occupational free speech in the workplace. Now, had the government worked with this organization closely, I think they would have avoided some of the unfortunate errors that they have made in this bill. But, fortunately, we have been working with FAIR, and we will be putting forward several amendments designed to be able to correct what we see as flawed legislation.

Let’s also remember why it is that we’re having this discussion, Mr. Speaker. In the context of the last few years I first became aware of the kind of bullying and intimidation that we saw by this government when I became leader of the Wildrose and had numerous donors and supporters fearful of reprisal in the event somebody knew that they were supporting the Wildrose or somebody knew that they were coming to a Wildrose event. The hon. Member for Calgary-Fish Creek and I used to have a laugh when we went to restaurants about how the people we would meet would put their back to the door just in case anybody saw them sitting with us because that is the culture that has been created by a government that has been in power for 41 years.

We’ve also seen that it goes far beyond that. We’ve seen municipalities, schools, and colleges that feel as though they have to hire high-priced lobbyists or give dollars to the Progressive Conservative Party in order to be able to get grants. We’ve seen letters written to school boards saying: you’d better be quiet; otherwise, you might not end up getting that school project in your riding. We’ve seen the Deputy Premier even threaten a group of parents in Airdrie that the reason they might not get their school is because of an outspoken MLA from Airdrie-Chestermere at the time.

This is what we’ve been accustomed to seeing from this government, this kind of bullying and intimidation. Of course, it culminated with the AHS review by the Health Quality Council and all of the allegations of health care professionals being bullied and intimidated. Once again, of course, the Premier had promised that she would do a full public inquiry into the issue of bullying and intimidation of health care professionals. It didn’t happen. But we know that there have been serious cases.

I’ll mention a couple of them. Dr. Ciaran McNamee, a doctor here who ultimately ended up leaving this country and going to work down in the United States because of a toxic workplace environment. We also introduced the public last year to Dr. Tony Magliocco, who tried and tried and tried through the proper channels to raise issues he felt were going to cause a serious concern in the diagnosis and treatment of various forms of cancer.

He got nowhere when he went through the official channels and, ultimately, once again, ended up leaving this country to go to another country to practise medicine. We even had a candidate for our own party, Dr. Peter Rodd, who was a doctor at Alberta Hospital, who also felt that he had been bullied and intimidated for trying to stand up and talk about certain practices that his superiors didn’t want to hear.

Now, the problem with this bill that we have is that we know that this is the context under which we are talking about whistleblower legislation, because we want these front-line workers, we want those who are involved at different levels of public office to be able to come forward and talk about the concerns that they have without fear of reprisal. Unfortunately, this whistle-blower protection bill as it’s written does not go any of the way towards addressing this very, very serious concern.

It can be corrected. There are ways in which we can make amendments to be able to close this loophole, and I’ll go through a few of the issues that we’ve identified and some of the issues that we hope the government will look upon favourably when we’re putting forward amendments because I think we all share the same goal. We want to be able to have strong whistle-blower protection.

We want to be able to have front-line workers feel that they have an environment where they are respected, where they are valued, where they can bring issues forward without being harassed or bullied or intimidated or threatened or in some other way forced to operate within a toxic work environment.

Now, in question period last week I was a little bit concerned because it seemed to me that the Associate Minister of Accountability, Transparency and Transformation didn’t quite know what his own bill said. In Bill 4 he said that it allows a whistle-blower to go to anyone that they wish, but that of course is not what this bill says. I want to use that as a jumping-off point because I want to talk about the way in which we’re judging the effectiveness of this bill. We’re judging the effectiveness of this bill on seven different measures.

The first measure is that we believe proper, appropriate, complete whistle-blower legislation will allow a prospective whistleblower to disclose anywhere. We do not want to see a highly prescribed process for disclosure of concerns. It may well be that an employee feels perfectly comfortable going to their deputy minister, going to their boss, going to a senior official within their own department, but it could well be that they’re actually concerned that the person they’ve got a problem with or the environment that they’ve got a problem with does not allow them to go through those official channels. They may want to go to the commissioner as a more comfortable way of bringing it forward.

They may want to go to the police directly.

They may want to go to a board if they’re with an agency and they’ve got it overseen by a board. There may be somebody on the board of directors that they feel they have a relationship with and can go to. They might want to go to the media. They might feel so concerned about an issue that they feel the only way to be able to get it addressed is to go to the media. We’ve seen that before.

They may want to go to an MLA. I can tell you that the hon. Member for Calgary-Fish Creek receives almost daily phone calls and e-mails from people who are talking to her about the kind of environment that they’re operating within and the kind of concerns that they have, the kind of issues they want to be able to bring forward without fear of reprisal.

The problem that we see with this bill is that it creates a highly prescriptive process. It’s actually quite interesting the way this is described under Procedure for Disclosures, under section 5. They call it “procedures to manage and investigate disclosures,” and that, I think, is really interesting language because it’s quite clear that the government is trying to create a process to manage an issue as opposed to getting to the disclosure part of it. It seems very clear – and I think that this is a fair criticism from FAIR – that they want to bring forward legislation that unfortunately will cause employees to have their concerns go into a black hole, and they may never see the light of day. That’s what we want to avoid.

We want an employee to be able to disclose their concerns wherever they feel the most safe and the most comfortable disclosing it. Point one, they have to be able to disclose anywhere. Second point. They have to be able to disclose at any time. I am concerned that there are a number of provisions in the legislation that restrict that ability to disclose at any time. For instance, even in the case where we have an employee concerned that if they don’t disclose that there’s going to be an imminent danger, an imminent risk to public safety, even in that situation the legislation still requires that even after they’ve disclosed it, they have to go back through this bureaucratic process to be able to make sure that the deputy minister is looped in through every step of the way. I would say that this again goes to this issue of having the security that you can disclose at any time without feeling like you’re trapped into an overly prescriptive process.

The other concern that I have is that there is a two-year limitation on being able to go after an issue from the time of the incident. We agree that there does need to be some kind of reasonable time period, but we think that time period should be a two-year limit from the time of disclosure. For a person who has been working in an environment where they see wrongdoing for some time or where they’ve experienced an environment where they don’t feel that they can be open for some time, it may well be that it will take them some time to work up to being able to tell somebody about it. So we think that being able to have this addressed in a timely way is important, and that means that from the moment it is disclosed, you would have a two-year time limit, not from when the incident first occurred.

The other part that we are concerned about – again, we’ve seen this time and time again with the government – is that it’s always on a go-forward basis. When we look at this bill under part 1, section 3(2), “This Act applies only in respect of wrongdoings that occur after the coming into force of this Act,” which is pretty remarkable when you think about it. There may be somebody here today, right now, who wants to be able to be protected under whistle-blower legislation because something is happening right now in their department. This legislation prohibits them from being able to talk to anybody about it, to disclose it, and to have it addressed because it’s not retroactive. Even though we’ve been talking about this for some time, even though it’s on the Order Paper, even though it’s going to be proclaimed in the next couple of months, if something is currently happening today, it can’t be discussed because now the bill says that it’s going to be on a go forward basis.

We think that that is a way of trying to actually quash any genuine exposure of wrongdoing in the government, and we don’t think that this is in the spirit of what the hon. Premier promised when she started talking about whistle-blower legislation during her run for the PC leadership.

The third way in which we’re going to be judging this legislation is that whistle-blowers have to be able to disclose for any reason. Once again, when we do look at this list of wrongdoings, it is again fairly prescriptive, fairly tight, and also focused on only the most serious types of violations.

I don’t object to the things that they have on this list. Again, I’m looking now at section 3(1). It talks about if there’s a contravention of an act or a regulation under section 3(1)(a). It talks about, under section 3(1)(b), if an act or omission might create “a substantial and specific danger to the life, health or safety of individuals” or “a substantial and specific danger to the environment.” Section 3(1)(c) talks about the “gross mismanagement of public funds or a public asset.” Section 3(1)(d) talks about “knowingly directing or counselling an individual to commit a wrongdoing.” Absolutely all of these things do need to be parameters under which somebody would have the opportunity to blow the whistle.

But we also want to make sure that we’re able to address this issue of bullying and intimidation, a feeling like you can’t come forward and talk about things that are going wrong in your department; otherwise, you might lose your job; otherwise, you might be demoted; otherwise, you might face some reprisals. So this does not go far enough, and it doesn’t actually get to the issue that I think prompted all of the public discussion about why we needed whistle-blower legislation in the first place.

We need to have an amendment that deals with the issue of being able to have protection for disclosing bullying and intimidation, having an ability to blow the whistle if there is a breach in the code of conduct or code of ethics or policies or directives that are occurring as well within a ministry. I think that that is just as important as these very serious violations that would be outlined here.

The fourth way in which we’ll be judging this bill is by looking at how broadly it covers those who might be impacted by government decisions. Now, I think the language initially was intended to be quite broad, but one of the things that we’re quite concerned about is the ability to see certain exemptions. For instance, it may not cover all of those agencies that do contract work with government. All that we read in the legislation is that it may extend at the discretion of the commissioner. It may extend to all of those different types of organizations that are doing work with almost a hundred per cent or a large share of their funding coming from government.

Of course, we know that there are a whole range of different entities that do work on government’s behalf, whether it’s our charitable organizations or nonprofit organizations that are administering to children, that are administering to the poor, that are administering to seniors, that are administering group homes. I think it would be an error in this legislation if we didn’t extend this whistle-blower coverage to all of those entities that are also relying almost a hundred per cent for their work on the contracts that they’re getting from government. It’s not just employees when you factor that in. It’s not just employees, then, who are impacted. We could potentially have volunteers who want to be able to raise the alarm as well. We think the language in this legislation is far too narrow.

The second thing is, of course, the exemptions for the Executive Council. We think that if there is wrongdoing among cabinet, that should also be disclosed. I think that there needs to be some provision that there aren’t exceptions. We all have to live to a high standard, and I think that whistle-blower protection should apply there, too.

But I think the thing that concerns me the most is section 31. This leaves it incredibly wide open. Under section 31 it reads: (1) The Commissioner may, in accordance with the regulations, exempt any person, class of persons, public entity, information, record or thing . . .

There’s that word again: “thing.”

. . . from the application of all or any portion of this Act or the
regulations.

That’s a pretty broad level of power for exemptions. (2) The Commissioner may impose any terms and conditions the Commissioner considers appropriate on any exemption provided for under subsection (1).

(3) The Commissioner must provide reasons for giving an exemption under this section and must ensure the exemption, including any terms or conditions imposed, and the reasons for giving the exemption are made publicly available.

It seems like an awful lot of verbiage for a section that shouldn’t be in there in the first place. We think that this entire section should be withdrawn from the legislation. If we’re going to have whistle-blower protection that is complete, that is broad based, we can’t be allowing for the commissioner to be able to exempt any person or thing from the protection of the legislation.

The fifth area in which we’ll be judging this legislation is whether or not the ombudsman or commissioner is appointed by an all-party committee. There does seem to be a lack of clarity about where this power will reside, whether it will be with the ombudsman or whether it will be independent. I’ll look forward to the debate to see whether I can get some further clarity on that. But the main thing is that it does need to be an office that reports to the Legislature. The Legislature, I believe, needs to be able to have the power to be able to provide the oversight to this independent office in order, once again, to be able to give the confidence to whistle-blowers that they do have the option of having all parties able to get the information that they need to be able to support them in their efforts to address the issues that are going wrong in their various departments.

The sixth area that we’ll be judging this legislation on is whether or not, when wrongdoing is found, there is an open, public reporting of that. At the moment the way this legislation is written is that the public reporting is only optional on the part of the commissioner. Now, we’ve seen how this has happened in a couple of instances over the last year. It’s sometimes not enough that you have an independent commissioner. We saw that, for instance, in the case of a particular MLA who lost the last election and was able to get an exemption from the Ethics Commissioner to be able to operate outside the provisions of the conflict of interest law. We have also seen the Chief Electoral Officer forbidden by legislation from being able to report 45 instances of elections violations, of illegal donations to a political party. We’ve seen as well what can happen when you are not allowing the full latitude for an independent officer to be able to do their work.

I worry that in this legislation, because there is that wiggle room – my experience with the way the government operates is that they do tend towards keeping things secret and not disclosing as opposed to reaching the higher bar that the Premier has set of openness, accountability, and transparency. We’re asking for the government to reach for the higher bar in this legislation, to raise the bar and make sure that all wrongdoing is publicly reported in a way that is not only annual but also whenever instances are occurring as it’s going along so that we can make sure that issues are resolved. Part of the reason why whistle-blowers come forward is not just to be able to protect themselves if they’re facing a toxic work environment, but chances are that it’s because they see some issue that needs to be resolved. We need to make sure that we know what the issue is, protect the whistle-blower, and then get on with actually resolving the issue that is in that department.

The last thing that we would be looking at is protection against harassment for those who come forward. This, I think, is where this legislation falls the most short, where it is the most inadequate. We look at the cases of these doctors – Ciaran McNamee, Tony Magliocco, Peter Rodd – who all got chased out of the health care system, in some cases chased out of the province or chased out of the country, because they did not feel that they had a work environment where they could operate. They wouldn’t have been able to move to a different hospital because of the harassment, because of the intimidation, because of the bullying.

There isn’t any recourse against those who bullied and intimidated them. We don’t even really know the names publicly of those who created such an uncomfortable work environment for these three men, and I don’t think that we actually even resolved any of the issues that they raised.

This, I think, was another example of failure. We don’t have protections against harassment for those who come forward and do blow the whistle. We have to make sure that if whistle-blowers are going to have the confidence to come forward, the public knows why it is that they felt such a serious need to expose what is going on in their area of work. We need to make sure that they’re protected so that they continue on doing the work that we hired them to do.

Mr. Speaker, there are other problems with the bill. As I mentioned, Wildrose will be bringing forth many amendments to it, but I do want to conclude by saying that I am reminded that previously the Premier had said: we either have open government, or we don’t. Well, when you take a look at this bill, it’s quite clear that we don’t. The Premier has also said that we need to keep raising the bar on accountability and transparency. Well, I think that this bill also fails on that count. The government needs to go back to the drawing board on this bill in an awful lot of ways.

We’re hoping we’ll be able to put forward amendments that can repair the worst deficiencies that we see in it. I would also hope that the government would be open minded about putting this bill forward to a committee, one of the policy committees, so that we can look at it once again, we can debate it through, we can identify the flaws, we can identify the amendments, so that we can fix it. If we can’t fix it, it shouldn’t pass.

We believe that we need to have whistle-blower legislation that isn’t just words on a page, that isn’t just a piece of paper, that isn’t just something that the government can pass so they can feel good about themselves because they have now got whistle-blower legislation on the books. We actually want to have a piece of legislation that the workers it is supposed to protect feel good about and processes in place where we know that whistle-blowers will be protected so that we can continue to restore the value that we have for our front-line workers, who are doing the work on behalf of Albertans every single day. I think that’s what we’ve got to keep in mind: who is it that this is designed to protect? It’s designed to protect those hard-working, front-line, public-sector workers who are doing so much every single day to make sure that the public services Albertans value are delivered in a way that has the highest value for taxpayer dollars as well as the very best service that Alberta taxpayers have come to expect.

Thank you, Mr. Speaker.