Public servants' suspension over ArriveCAN contracting is 'concerning,' lawyer says

“The actions taken send a strong message to public servants who are deciding whether to expose wrongdoings by superiors.”

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Published Jan 19, 2024 • Last updated 59 minutes ago • 7 minute read

The ArriveCAN app. Photo by Dax Melmer /POSTMEDIA

The suspension of two federal government workers amid investigations into the controversial ArriveCAN app could dissuade other public servants from speaking out about actions taken by superiors, their lawyer argues.

Cameron MacDonald, an assistant deputy minister at Health Canada, and Antonio Utano, a director-general at the Canada Revenue Agency, previously worked together at the Canada Border Services Agency. Ottawa-based lawyer Chris Spiteri confirmed in an email this past week that both had been suspended in relation to the contracting of federal work.

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Spiteri said, however, “that statement alone without qualification imputes guilt or wrongdoing on MacDonald and Utano’s part.”

“This is, in fact, precisely what I believe the CBSA wants,” Spiteri said. “The timing, process and severity of what has been done to them is very concerning. It seems to be both retaliatory in nature and designed to undermine their credibility.

“The actions taken send a strong message to public servants who are deciding whether to expose wrongdoings by superiors. As well, this may prevent persons who support Cameron and Antonio from giving evidence for fear they will be targeted. They have already been told by others that they fear reprisals.”

This past week, The Globe and Mail reported that the two public servants had been suspended “in connection with allegations of misconduct in the awarding of federal contract work.” The article stated that the names of both employees “regularly appear on CBSA contracting documents related to outsourcing work on the ArriveCan app for cross-border travelers,” and that both were connected to another CBSA outsourcing project involving software company Botler AI.

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Spiteri said MacDonald and Utano had yet to be provided with specifics of the allegations against them, despite requesting them.

Investigation launched in 2022

The House of Commons committee on government operations and estimates (OGGO) began its study of ArriveCAN in October 2022. The app was used to screen travelers crossing borders into Canada during the COVID-19 pandemic. Since the study began, the committee has looked into the high cost of the app, which grew to $54 million, as well as its procurement.

It was later reported in October 2023 that the co-founders of Botler AI presented allegations of contracting misconduct to one of the now-suspended workers, Utano, and others in 2021, as well as to higher-ups at CBSA in 2022. The CBSA launched an internal investigation and referred the issue to the RCMP, which also began investigating.

On Thursday, CBSA president Erin O’Gorman said during an OGGO committee meeting that the investigation was looking into procurement practices at CBSA based on, “frankly, the allegations that were provided by Botler.”

The app used to screen travelers crossing borders into Canada during the COVID-19 pandemic cost $54 million. Photo by Peter J. Thompson /Postmedia

Utano and MacDonald appeared before the OGGO committee last November, when MacDonald argued that Botler AI’s allegations were “unfounded” and claimed that former CBSA vice-president Minh Doan had lied to the committee two weeks earlier about who was responsible for selecting contractor GCStrategies to work on the app.

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MacDonald, who has said he had recommended Deloitte build the app, also said he felt “incredibly threatened” by Doan.

“There has been a concerted effort to portray Mr. Utano and me as corrupt,” MacDonald said at the time. “The narrative is compelling, but it’s based on untrue allegations.”

Doan later told the committee on Nov. 14 he never threatened MacDonald and he did not choose to hire GC Strategies, but he had chosen to partially outsource the work.

“The decision I was asked to make was whether to fully outsource the work or to have my team oversee the application development,” Doan told the committee, noting he had concerns about handing off full control of the project to an outside firm and about data not being stored on the CBSA cloud.

Suspension called “extraordinary”

In his emailed statement to this newspaper, Spiteri highlighted that MacDonald and Utano were suspended without pay and that an investigation was started only after the employees testified before a Parliamentary committee that senior government officials had misled parliamentarians. He added that the two also had their security clearances stripped while they were on medical leave.

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“Their suspension without pay is frankly extraordinary,” Spiteri said, adding that the decision was an “extreme and iron fisted” penalty that was done problematically. “This will also certainly cast a chill and deter other civil servants from speaking out.”

When asked at an OGGO committee meeting on Thursday why the two public servants were suspended, O’Gorman said she did not take that action, but the employees’ deputy heads had made that decision. O’Gorman, however, added that preliminary statements of fact had been provided to the deputy heads.

Neither the CBSA, Health Canada nor the CRA responded to questions about the two employees, with the two latter organizations citing federal privacy laws and requirements.

Health Canada spokesperson Kori Ghergari said the department was “committed to protecting the confidence and trust that individuals have in our organization.”

“At all times, we expect our employees to abide by Health Canada’s Code of Conduct and the Values and Ethics Code for the Public Sector,” Ghergari said. “The department takes any allegations of misconduct seriously and thoroughly investigates any information brought to our attention.”

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The Globe and Mail article also referenced a letter by MacDonald to the House of Commons committee on government operations, which shared that CBSA was previously covering the public servants’ legal fees.

Guillaume Bérubé, a spokesperson for CBSA, would not confirm that, but said requests for legal assistance were considered following the Treasury Board Policy on Legal Assistance and Indemnification.

When grilled on Thursday about the timing of the suspensions in comparison to the public servants’ appearance before the committee and asked about pulling their legal assistance, O’Gorman said she had not yet received a request to cover the individuals’ legal costs for an upcoming appearance to the committee.

“I’m not retaliating against anybody,” O’Gorman said. “I’m trying to find out what happened.”

At the meeting on Thursday, Conservative MP Garnett Genuis raised a “question of privilege,” which was ultimately defeated, related to the issue of retaliation against public servants.

“My view is that it is a critical privilege of committees and of parliamentarians to be able to call witnesses, hear from witnesses and for those witnesses to be able to present their information without being subject to retaliation and intimidation,” Genuis said. “It limits the rights and privileges of committees because it constrains our ability to actually hear and receive accurate and truthful testimony, and it’s clear to me, from the series of events we have seen that, if not direct intentional retaliation, there certainly is a strong appearance of retaliation.”

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“Liberals and New Democrats voted together to kill that question of privilege,” Genuis said after the vote. “It suggests to me that Liberals and New Democrats don’t want to get to the bottom of what happened with ArriveCAN, they don’t want public servants to feel comfortable telling the truth.”

The 2022 Public Service Employee Survey asked public servants whether they felt they could initiate a formal recourse process like a grievance, complaint or appeal without fear of reprisal.

While overall only 11 per cent of total public servants said they somewhat disagreed, that number reached 15 per cent among respondents working at CBSA. And, while only 11 per cent of total public servants said they strongly disagreed with the statement, that number was 22 per cent among CBSA employees.

Spiteri said MacDonald and Utano had received “an outpouring of support from public servants” as well as messages that “consistently reference the unjust nature of their treatment and confirm that this is in fact what any public servant faces for speaking the truth publicly.”

Nina Ioussoupova, a spokesperson for Canada Revenue Agency, said “any allegations or suspicions of employee misconduct are taken seriously and are thoroughly investigated.”

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“When unfavourable information about an employee comes to the CRA’s attention, the CRA reviews it in the context of whether the employee can still reliably perform their assigned duties,” Ioussoupova said. “The CRA has measures in place to ensure the highest standard of employee conduct is upheld, and has vigorous processes in place to assess that any individuals who have access to government information and assets are reliable and trustworthy.”

Ioussoupova added the agency “remains strongly committed to protecting its integrity and upholding public trust,” noting “the confidence and trust that individuals and businesses have in the Canada Revenue Agency (CRA) is a cornerstone of Canada’s tax system.”

The Auditor General of Canada is expected to publish a performance audit of ArriveCAN, including payments, contracts and subcontracts for all aspects of the ArriveCAN tool in 2024. The audit is expected to cover the allegations of misconduct.

Bérubé said CBSA’s internal investigation, which began following receipt of Botler AI’s allegations of misconduct, was ongoing.

“The strongest demonstration of values is not what you say but what you do,” Spiteri said. “This is why the public service is watching and why they are right to be concerned by the current leadership’s actions.”

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