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Whistleblower Legislation
An analysis of the Public Servants Disclosure Protection Act (PSDPA)
Published by FAIR:
The Federal Accountability Initiative for Reform
About FAIR
FAIR ( Federal Accountability Initiative for Reform) promotes integrity and
accountability within government by empowering employees to speak out
without fear of reprisal when they encounter wrongdoing. Our aim is to
support legislation and management practices that will provide effective
protection for whistleblowers and hence occupational free speech in the
workplace.
Our focus in this first document is on what’s wrong with the current system, to ensure
that the many serious problems are properly understood. The next step is to agree on and
articulate practical solutions. Our view is that this system is so badly broken that some
major changes are required to fix it: it cannot be put right by tinkering at the edges.
Some of the solutions are relatively simple and obvious, and have already been suggested
by FAIR and by organizations such as the Government Ethics Coalitioni. A set of fifteen
well-designed amendments already exists, which were drafted by the Senate in 2006,
after examining the legislation and correctly identifying many of the problems.
(Unfortunately the government rejected all of these amendments.)
However, some of the solutions are not obvious and require some kind of strategic
decision or radical departure from the current framework. Here is one example:
The UK enacted whistleblower protection for all employees more than a decade
ago. This has been highly successful – but it was built upon a strong existing
system for protecting the rights of all employees, regardless of where they work.
However no such system exists in Canada to provide a starting point.
This is why we believe that it’s important to engage in a thoughtful and well-informed
discussion about how to fix the current system, taking into account what’s permissible in
our legal system, what’s practical to implement, and what can be successfully navigated
through our political system.
Future versions of this document will expand upon these issues and possible solutions.
Executive Summary
During the passage of the PSDPA in 2006, the Government claimed that it would provide
‘ironclad’ protection for whistleblowers, and that it is the “Mount Everest” of
whistleblower protection around the world. The reality has been very different.
When FAIR testified to Parliament we predicted that the legislation would fail, but we
could not have imagined how badly. A combination of flawed legislation and improper
administration created a system that in three years uncovered not a single finding of
wrongdoing and protected not a single whistleblower from reprisals. The Commissioner
appointed to protect government whistleblowers resigned in disgrace following a report
by the Auditor General condemning her behaviour. The credibility of the entire system is
currently in tatters: it needs a complete overhaul.
We first published this document in 2007, based on analysis of the legislation before it
came into force. At that time we warned public servants of the pitfalls and urged them to
be cautious in using this new regime. After seeing the law applied in practice we have
identified many more problems, and the behaviour of the former Commissioner has
dramatically illustrated how faulty legislation facilitates maladministration. Our advice to
whistleblowers remains much the same: do not use this system without first
understanding fully how it works and the potential pitfalls. And pay special attention to
the track record of the responsible agency – the Office of the Public Sector Integrity
Commissioner (OPSIC).
Will our message change with the appointment of a new Commissioner? Not likely:
major changes in the law are required before anyone could trust this system to work
effectively.
The basic approach of the Act – creating a complete new quasi-judicial process just for
whistleblowers – is misguided and suspect, creating a secretive, unaccountable regime,
hermetically sealed off from our courts and from the media. Experience has shown that
watchdog agencies constituted like this are invariably protective of the establishment and
indifferent or even hostile to whistleblowers.
This strategy is costly and wasteful, creating two new agencies that have spent millions
and achieved nothing useful. Not only has this resulted in the waste of significant public
monies, but it is a missed opportunity to adopt methods that work properly and are cost-
effective.
The text of the law is a bloated, unwieldy mess. It creates a labyrinth of complex
provisions, full of ambiguities, exceptions and repetition, which almost no-one can claim
to understand fully. It stands in stark contrast to the brevity, simplicity and clarity that we
find in whistleblower legislation that has proven to be effective.
As we examine the law, section by section, we find that virtually every feature is flawed.
It ignores best practice, decades of experience in other jurisdictions, and the advice of
internationally-renowned experts who were called to Ottawa to give testimony.
From the outset we have expressed serious concerns about the way in which the law has
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What’s Wrong With Canada’s Federal Whistleblower Legislation
been administered by the Public Sector Integrity Commissioner, questioning her
effectiveness in 2008 and calling for her to be replaced in 2009. The Auditor General’s
recent report, exposing egregious conduct by the Commissioner, confirms some of our
concerns but does not address others.
Even if the Commissioner had not been an abusive boss, had not engaged in reprisals
against some of her staff, and had not rejected cases without proper due process – in other
words, even if she had acted entirely properly – the current law would still have allowed
her to pursue a largely bogus “prevention” strategy to the virtual exclusion of
investigations, allowing the investigative capacity of her office to be gutted, while
building up a substantial cadre of lawyers who were likely pressured to defend the
wrongdoers rather than the whistleblowers.
Nothing in the law compels any future Commissioner to adopt a different strategy, and in
fact the law as it stands ensures that most cases will be rejected on technicalities, that few
cases will ever be investigated, and that few whistleblowers will ever prevail in cases of
reprisal.
Further, the law provides no credible mechanism for ensuring that wrongdoers –
including those in high places – are appropriately sanctioned. Experience has shown that
merely reporting wrongdoing to Parliament does not do the job. Properly designed
whistleblower protection protects the public interest by providing a powerful deterrent
effect – potential wrongdoers see the risks and think twice. Without a robust and
dependable means of administering sanctions there is no deterrent effect.
The bottom line is that this regime is not working – in fact it has caused great harm. It is
not the safe haven that was promised to honest employees. Rather than deterring
wrongdoers, it has surely emboldened them, secure in the knowledge that witnesses to
their misdeeds can easily be silenced.
It has also facilitated reprisals against dozens of truth-tellers who courageously came
forward, believing the promises that they would be protected. Many of these people have
told us about the vicious, career-ending reprisals that they are now suffering. Their lives
are in ruins, and the “ironclad” protection that they were promised is nowhere to be seen.
There was no safe haven for them.
In the remainder of this document we will elaborate on the problems summarized above.
Clearly this failed system requires major reform and FAIR will contribute to the debate
by publicizing specific proposals designed to create a system that will work.
Your predicament is that you feel compelled to speak out – for your own personal sanity
and self-respect and to protect the public interest – but you are not sure how to go about
this, and you fear that there might be negative repercussions for you.
You need to understand that expressing truths that are inconvenient to those in power is
inherently dangerous and can cause serious harm to you career, to you and your family’s
wellbeing, even to your physical and mental health.
This has been the experience of others who refused to overlook, condone or collaborate
in wrongdoing: many have found themselves facing management denial of the problem
and severe, calculated reprisals designed to silence, punish and discredit them. So, before
doing anything, you must arm yourself with knowledge, for example: about the
experiences of others; about the relevant legislation that may apply in your situation;
about the likelihood of obtaining legal support (e.g. from your union) in the upcoming
battle; and so on.
As long as the law does not provide any effective protection for truth-tellers, we cannot
blame those who chose to remain silent rather than martyr themselves and their families,
especially when there is little chance of bringing about any change.
We hope that this document will help whistleblowers to determine the best course of
action, to protect the public interest without bringing great harm upon themselves and
their loved ones. We also hope that it will spur lawmakers to implement significant
reforms, rather than tinkering at the edges of a broken system.
For members of the Armed Forces, CSIS or the RCMP, the protection from
reprisals is either limited or non-existent
The Armed Forces and CSIS are completely excluded from the Act – current or past
employees have no protection from reprisals.
Experience has shown that organizations involved in national security issues are plagued
by problematic behaviour for two reasons:
a) they are more vulnerable to mismanagement and outright misconduct because
they are able to conceal so much of what they do: such problems are easy to hide
b) retaliation against truth-tellers is very easy in these organizations. The simplest
method of reprisal is to simply strip someone of their security clearance. This
action – which is almost impossible to challenge – can instantly render someone
unemployable in their chosen career for the rest of their life.
The RCMP, although theoretically covered by the PSDPA, is for all practical purposes
exempted, since RCMP members cannot submit complaints of reprisal directly to the
Commissioner: they must first exhaust their organization’s internal complaints
procedures [Section 19.1(5)]. But the RCMP has a track record of using these internal
procedures to punish whistleblowers (and anyone else who falls out of favour with their
bosses), and these proceedings can take a very long time. Thus it is unlikely that any
RCMP employee will ever obtain any kind of protection from reprisal under this law,
even years after the event.
The case of Cpl. Robert Reid provides a good example of how the RCMP takes reprisals
at will against its own. Read, a 26 year veteran of the RCMP, was responsible for
investigating government corruption involving the Canadian High Commission in Hong
Kong. He eventually concluded that his investigation was being sabotaged by his bosses,
took his concerns up the line of command and then to the media as a last resort. An
RCMP external review committee vindicated Read, criticized the RCMP and ordered him
reinstated – but the RCMP simply refused to comply. Read appealed adverse legal
decisions all the way to the Supreme Court of Canada, which in May 2007 declined to
hear his case.
If we reflect upon the major scandals that have become public in the past few decades –
the tainted blood scandal, the gun registry overrun, the sponsorship scandal – every one
has had significant private sector involvement. In an era where public-private
partnerships of all sorts are in vogue, when much of the work of government is being
done through contractors, this is a gaping omission in the law.
There is abundant evidence that private sector companies – such as the food industry, the
pharmaceutical industry and resource industries – can cause severe damage to public
health and safety and to the environment, and that regulatory oversight of these industries
is often inadequate. Employees in the private sector are terrified to speak out – even in
sectors such as aviation where their own lives are at risk – because of the career-ending
reprisals that seem to follow almost invariably. This situation costs lives.
In June 2009 FAIR testified to the Parliamentary committee investigating the Listeriosis
outbreak that whistleblower protection should be extended to everyone in the food sector.
In December 2010 the USA did exactly this, passing the strongest whistleblower
protection in history for workers in this industry, including the right to jury trials.
Other countries have protected private sector employees by passing sector-specific laws
(as in the USA) or ‘sector-blind’ laws, such as the UK’s whistleblower law. This covers
all employees, both in the public sector and private industry and has been working
effectively for more than a decade. Meanwhile Canada is still failing to adequately
protect its 400,000 federal public servants, out of a workforce of seventeen million
employees who should all be protected.
For example:
a) All means of access to our normal courts have been blocked
b) There is little protection against bullying and harassment – for any employee
c) Going public or disclosing to the media is strictly prohibited in most
circumstances.
This important and far-reaching provision was quietly passed into law soon after
whistleblower Joanna Gualtieri prevailed in a jurisdictional battle over her claim of
reprisals by her bosses. Justice Department lawyers had claimed that Gualtieri had no
right to go to court, that her remedy was to submit a grievance – an absurd argument, as
this would have amounted to asking the very people who were harassing her to
investigate themselves.
The Ontario Court of Appeal unanimously agreed with Gualtieri. But rather than appeal
the case to the Supreme Court of Canada, where it likely would have lost, the
Government simply rewrote the law and foreclosed employees from accessing our courts.
Some lawyers call this ‘the Gualtieri clause’, created to prevent anyone else from ever
seeking justice in the way that she did.
Subsequent court rulings such as the Vaughan case (SCC 2005) have reinforced this
denial of due process for whistleblowers, forcing them into the grievance system where
their concerns are often dealt with by the same cadre of managers who are orchestrating
the reprisals. This situation was reaffirmed in 2009 by the Ontario Court of Appeal,
which ruled that even as a whistleblower Ian Bron had no right of access to the courts –
the grievance process was his only recourse.
Trying to use the grievance system as a means of adjudicating cases of reprisal is rather
like calling in a marriage guidance counsellor to deal with a home invasion. Decades of
experience, here and in other jurisdictions, have proven beyond any doubt that it doesn’t
work. Nearly always the grievance process affirms that whatever was done to the
whistleblower was deserved.
There is little protection against bullying and harassment – for any employee
It appears that many of Canada’s learned judges fail to understand that bullying and
personal harassment, although grievable, are not adjudicable under federal workplace
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What’s Wrong With Canada’s Federal Whistleblower Legislation
laws and collective agreements. And a grievance can not be considered to be a legitimate
legal remedy with the accused wrongdoer or offending department standing in judgement
of itself.
It’s no wonder then that there is a growing epidemic of bullying and harassment in the
public service, as evidenced by the Public Service Employee Survey, conducted every
three years. The 2009 survey showed levels of harassment at a historic high with on
average 28 percent of employees reporting that they had been harassed in the past two
years. In some departments the percentage reporting harassment is 40 percent or higher.
Yet the government seems asleep at the switch – or worse. From 2004 to 2007 Canada
Public Service Agency reported annual statistics on the implementation of the Treasury
Board Policy on the Prevention and Resolution of Harassment in the Workplace. These
reveal a gradually worsening situation, until in 2008 the agency simply stopped issuing
these reports.
Widespread workplace harassment is an issue that affects all government employees and
not just whistleblowers. But whistleblowers are surely the most vulnerable population
because of the high risk of reprisals by managers accused of misconduct. And bullying
and harassment are the weapons of choice today for managers who want to punish and
dispose of employees (for whatever reason) without being called to account for their
actions.
This type of reprisal is no trivial matter. Over time it has deadly results, often resulting in
severe, life-long psychological injuries such as PTSD. It can produce measurable changes
in the brain and devastating symptoms such as nightmares, flashbacks, panic attacks,
insomnia, clinical depression, and suicidal thoughts. These psychological wounds are a
hard burden to bear for someone who has also lost their job, their career, their reputation
and their livelihood as a result of reprisals.
For this reason, whistleblowers must have a clear right to go public when other methods
of disclosure are not working. But this law strictly prohibits going public but for rare
exceptions even when internal disclosure has clearly failed or is being dragged out for
years.
The sponsorship scandal was uncovered by journalist Daniel Leblanc, whose interest was
first piqued by the aggressive use of the Canadian flag in federal advertising in Quebec
because other advertisers weren't doing the same thing. Lacking anything meatier to work
on at the time, he pursued this oddity and what he eventually uncovered brought down
the government of the day.
Under the PSDPA, most real-life situations of alleged wrongdoing will be screened out
and cannot be investigated because of:
a. A restrictive definition of wrongdoing
b. Deference to any other actual or potential process (e.g. grievance)
c. Other vague and subjective reasons for refusal.
A disclosure may not be accepted if it involves only violations of Treasury Board Policies
(or other Departmental rules). Instead, the Commissioner will have to decide whether the
wrongdoing falls under one of the broader categories given in the definition of
wrongdoing, such as ‘gross mismanagement’ – and the government lawyers who will
defend the alleged wrongdoer can subsequently challenge this decision.
It’s worth noting in passing that there a vacuum of responsibility regarding the
enforcement of Treasury Board policies – no agency has been tasked with this.
There’s also a similar vacuum regarding enforcement of the codes of conduct required by
the PSDPA. OPSIC could be assigned this role, but to fulfill this effectively would need
the necessary resources and authority, including changes to its mandate and a much
better-defined relationship with the departmental Senior Officers responsible for
disclosures of wrongdoing. At present none of this exists and the network of Senior
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Officers is largely moribund, with only a handful of departments operating effective
internal disclosure systems.
This means that if the whistleblower has informed anyone else about the wrongdoing
(such as senior management in the department concerned, the RCMP, the Auditor
General or the Privacy Commissioner) then the Commissioner may refuse to look at the
case on these grounds – even though this other body may not be doing anything with the
information. Even if all other avenues have been blocked (by other bodies refusing to
take any action or stalling endlessly) the Commissioner can still refuse to accept the
disclosure on the grounds that the matter could be more appropriately dealt with
elsewhere.
Other vague and subjective reasons for refusal to deal with disclosures
Even if the definition of wrongdoing is met and there is no jurisdictional issue, the
Commissioner is still not obliged to investigate. The Commissioner can refuse to deal
with any disclosure [Section 24], on other grounds, e.g. if the Commissioner believes that
the whistleblower is not acting ‘in good faith’; or it is ‘not in the public interest’; or any
other ‘valid reason’.
These vague and subjective provisions give the Commissioner enormous discretion to do
nothing. So there is no guarantee that any disclosure will be investigated, regardless of
the nature or severity of the alleged wrongdoing: it’s up the Commissioner to decide
whether the wrongdoing falls within the statutory definition, and whether the
whistleblower’s motives for coming forward are ‘pure’.
Given such provisions in the law, this agency is not a refuge of last resort that will look at
cases when all else has failed, but a fortress apparently designed to keep whistleblowers
out and pass the buck to others.
The Commissioner can do none of these things, but is limited to investigating individual
disclosures one at a time. The Commissioner cannot initiate any investigation without
having first received a formal disclosure from someone, even if there are allegations
making headlines in the media. And if the supply of substantive disclosures dries up (as
may happen if the agency loses credibility) then the Commissioner has no work to do.
If wrongdoing is found, the Commissioner must also make a case report to Parliament
within 60 days. This report includes the finding of wrongdoing, any recommendations
made to the department head, and any observations regarding the adequacy of the
department’s response. The Commissioner has no mandate to do anything further.
This process may seem reasonable, but decades of experience have demonstrated that
such powers are not enough to reliably correct serious wrongdoing.
For example, although the public strongly approves of the work of the Auditor General,
departments routinely ignore the AG’s recommendations year after year, choosing
instead to ride out the brief storm of public indignation that follows each report. This was
the case with the Sponsorship Scandal, where the AG reported procurement irregularities
for years but no effective action was taken. The full truth did not emerge until Prime
Minister Paul Martin chose to establish a public inquiry.
Although the resulting scandal helped bring down his government, Justice Gomery had
no power to discipline or prosecute the wrongdoers, nor to order corrective actions.
Gomery’s recommendations for corrective action have still not been implemented (they
are largely ignored in the Federal Accountability Act), and only a handful of the many
participants in the Sponsorship Scandal have been prosecuted.
This example illustrates just how ineffective is the traditional process of simply reporting
wrongdoing to Parliament. In order to combat corruption effectively, additional powers
are also required: to prosecute wrongdoers and to order corrective action.
It’s also entirely appropriate for this agency to have different powers than others such as
the Auditor General that report to Parliament, since it has a very different mandate. It is
essentially a law-enforcement agency charged with exposing and deterring serious
wrongdoing: it should have the tools required to act aggressively against the crimes and
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What’s Wrong With Canada’s Federal Whistleblower Legislation
serious malfeasance that it uncovers: tools such as order powers and the ability to launch
prosecutions.
For example, suppose that the whistleblower has already launched a grievance against
apparent reprisals by bosses and finds that it is going badly. The OPSIC will refuse to
deal with this person’s complaint because there is another process (the grievance) under
way. Once the grievance is settled, OPSIC will again refuse to deal with the complaint
because it has already been dealt with by another process. Suppose that the bosses
accused of wrongdoing were involved in settling the grievance? That doesn’t matter –
because the grievance process provides a comprehensive remedy, according to legal
precedents. What if the whistleblower didn’t launch a grievance? OPSIC can still refuse
to deal with the case on the grounds that it would be better dealt with by some other
process – like a grievance.
It’s a true Catch-22 situation. Since the law allows (or requires) the OPSIC to defer to
any other jurisdiction, there’s virtually nothing left that it can or must deal with: the
Commissioner can turn everyone away.
This is far too little time. In practice, reprisals are usually covert at first and
whistleblowers often think at first that they are just going through a rough patch with
their current boss, only to discover months (or even years) later that the organization has
been systematically engaged in a campaign of adverse personnel moves including
negative appraisals, denial promotions, and generally making life difficult for them.
The Commissioner can extend this time limit – but again the law is written in a way that
puts the employee at the mercy of the Commissioner’s discretion.
And if adverse actions began before this formal step was taken, then in the eyes of the
law such adverse action cannot be considered reprisals for making a disclosure, since the
“formal” disclosure had not yet been made. This lets aggressors off the hook – as long as
they begin their reprisals quickly, before the potential whistleblower has made any formal
disclosure.
Anyone can make a disclosure to the Commissioner and the Act states that employers
cannot retaliate against employees who have made a disclosure. But whistleblowers
employed in the private sector or who are simply private citizens will be entirely on their
own in trying to seek a remedy for any reprisals they experience – but without a remedy
they have no protection.
And make no mistake; the bureaucracy has a long arm, a long memory, and many ways
of taking reprisals against people who are not public servants. Contractors can be quietly
ordered to fire (and blacklist) employees who raise concerns – or risk losing government
business. People who receive services or benefits from a department can suddenly find
these being withheld. Personal information can be illegally accessed and leaked to smear
and discredit whistleblowers.
Both of these latter techniques were used against veteran Sean Bruyea, in a classic
example of how whistleblowers are treated. Aggressive tax audits, intrusive surveillance,
false accusations of wrongdoing leading to police investigations, even arrest... The
possibilities are endless and limited only by the imagination of wrongdoers in powerful
positions striving to save themselves.
However, the Commissioner has no power to protect truth-tellers from reprisals, and the
tribunal that is supposed to do so is likely to prove impotent. There are several reasons
why the tribunal is unlikely to protect any whistleblower.
In other more progressive jurisdictions, this frequently fatal blow to whistleblower cases
is remediated by a reverse onus provision: once the employee has proven that there is a
connection between the whistleblowing and the adverse action (e.g. a short time frame
between the whistleblowing and a demotion) the burden shifts to the employer to prove
that these actions were taken for good reasons other than retaliation. Even with this
reverse onus, proving reprisal is not a slam dunk for the whistleblower – only about 20%
prevail.
The Commissioner can provide the whistleblower with access to legal assistance – up to
the limit of $1,500 (or $3,000 in ‘exceptional circumstances’). This absurdly small
amount is available only for pre-Tribunal matters, and it is entirely at the discretion of the
Commissioner.
There is no provision for any legal support for the whistleblower during the Tribunal
process. Yet the Justice Department can and does routinely spend millions of dollars
defending the accused, entangling the whistleblower in legal manoeuvres for years while
their legal costs mount up and their health and personal relationships are damaged by the
stresses of an abusive legal process.
In the case of Joanna Gualtieri, the Foreign Affairs real estate specialist who exposed
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What’s Wrong With Canada’s Federal Whistleblower Legislation
massive waste and extravagance in the provision of accommodations for diplomats
abroad and then sued her bosses for harassment, Justice Department lawyers dragged out
her case for almost 12 years, in the process forcing her to answer more than 10,500
questions during pre-trial discoveries. The Justice Department’s legal files on this one
case totalled more than 50 linear feet of paperwork – taller than a five-storey building.
Clearly there is nothing in this Act to level the playing field as far as legal muscle is
concerned.
No access to courts
There is little pressure on this Tribunal to perform: it can hold its hearings in secret, it can
take as long as it likes, and it does not even have to file its decisions with the federal
court. The only avenue of appeal is judicial review which will simply send the matter
back for reconsideration if a mistake is judged to have been made – judicial review
cannot order a remedy for the whistleblower. No matter how questionable the Tribunal’s
actions or decisions the whistleblower cannot gain access to the normal court system,
with court reporters, rules of procedure and judges who can be impartial because their
tenure is secure and who could award a remedy that accounts for the wrongs committed.
The seriousness of this problem can be seen by examining USA experience of a similar
arrangement (a special purpose administrative body, no access or right of appeal to the
courts, and no reverse onus provision): of the first 2,000 whistleblowers who submitted
complaints of reprisal, only four prevailed.
This is not the ‘day in court’ that whistleblowers were promised and that justice demands.
But these reprisals are typically vicious, calculated, premeditated and sustained assaults
upon an employee, orchestrated by someone in a position of power who is trying to cover
up unethical or even criminal acts. The effects upon the whistleblower are often
devastating, life-changing and permanent. The punishment for such aggression should be
harsh, yet this law limits the maximum penalty to dismissal. Similarly the law does not
begin to address the magnitude of the potential harm to the whistleblower: the focus is on
temporary economic loss, not psychological injury, and damages are arbitrarily capped.
How should the law handle proven reprisals? In much the same way as the situation
where a criminal bludgeons half to death a witness to his crime – since harassment can
inflict equally devastating and debilitating wounds. There should be ‘make whole’
remedies available to the victim including compensation for permanent disabilities
inflicted. And there should be personal liability on the part of the harasser: they should
not be shielded by their department and their legal bills covered by the taxpayer.
The bottom line is that the ‘ironclad protection’ from reprisals that this Tribunal
supposedly offers is a process laden with pitfalls for the whistleblower, likely to languish
Access to Information
The Act carefully and precisely blocks all possible avenues of access to the details of the
Commissioner’s investigations, putting these beyond the reach of Access to Information
laws not just for a few years, but forever. This is one point on which the Commissioner
has no discretion. This is claimed to be for the protection of the whistleblower, but the
effect is to shield the alleged wrongdoers – and OPSIC staff – from any possible scrutiny
or challenge.
Misclassification of documents
Government departments and agencies have frequently been criticized for hiding
embarrassing information by incorrectly classifying documents e.g. as solicitor/client
privilege and/or cabinet confidence. In other jurisdictions, this shield of confidentiality
can be penetrated in certain circumstances to allow alleged wrongdoing to be properly
investigated. The PSDPA does not do this. Under this Act such classified information
cannot ever be disclosed – either by an employee whistleblower or by the Commissioner.
Secret hearings
The tribunal may elect to conduct its proceedings in camera (i.e. in secret) if either of the
parties requests this – the agreement of the other party is not required. Those accused of
reprisals will surely call for secret hearings, while the whistleblower will surely object,
but likely to no avail.
And when whistleblower cases are settled by the government, there is invariably a
draconian gag order attached, which prevents the whistleblower from ever discussing the
wrongdoing. (Incidentally, in the USA gag orders can only gag the quantum of settlement
and cannot extend to the substance of the case – in the words, the whistleblowing.)
Such gag orders are an abuse of power, whereby public money is used to bully, blackmail
and bribe victims of harassment, to force them into perpetual silence in return for an end
to their ordeal in the legal system. They clearly work against the public interest. Yet this
law does nothing to limit the use of such gag orders.
Moreover, this law abrogates the common law rights that the whistleblower would
otherwise have. It doesn’t enhance legal protection for the whistleblower, rather it
restricts protections that the whistleblower already has at common law.
This law is massive, in part because it tries to do so much. To provide some comparisons,
the text of the PSDPA law is three times the size of the legislation that has, with modest
changes, provided our Auditor General’s mandate since 1867. It is three times the size of
the UK’s legislation, passed in 1998, that has been so effective there for more than a
decade. It is six times the size of the private members bill that was written by FAIR’s
founder Joanna Gualtieri and briefly debated in Parliament in 2004 – a properly designed
law that focused solely on providing real protection for whistleblowers, and did so
without creating any new agencies.
As one example of complexity, within its 60 sections the Act contains no less than 35
references to the Royal Canadian Mounted Police Act, mostly spelling out exceptions in
the way that RCMP members are to be treated. It’s difficult to see why the RCMP
requires such extensive special treatment, or why all these provisions are even necessary.
Finally, it is very costly to implement. The two thus-far-useless agencies that it has
created – the Office of the Public Sector Integrity Commissioner and the Public Servants
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What’s Wrong With Canada’s Federal Whistleblower Legislation
Disclosure Protection Tribunal – have a combined annual budget of more than $8 million.
Over the course of the three years since their creation, about $15 million of taxpayer
money has been squandered. This money would have been much better spent providing
adequate legal aid for whistleblowers in our regular court system.
In its size and complexity, this regime is tantamount to a complete new quasi-judicial
system designed just for whistleblowers – but one that seems designed not to work. It
operates inside a bubble, shrouded in impenetrable secrecy, sealed off from our proper
legal system, with layer upon layer of barriers and traps that ensnare whistleblowers,
reject their cases and deny them due process.
This system not the safe haven that was promised to honest employees: it is more like a
bureaucratic obstacle race, designed to prevent anyone from completing the course.
These statistics illustrate how the shortcomings in the law – which FAIR first pointed out
in 2007 – have caused the system to fail: rejecting most cases, initiating very few
investigations and resulting in no findings of wrongdoing or reprisal.
Disclosures of wrongdoing
Reasons given for rejection of disclosures of wrongdoing
The chart below reveals the most frequently-used reasons for rejecting disclosures of
wrongdoing. Note that the chart covers only the period 2008-2010, since the
Commissioner’s first annual report did not disclose this type of information.
Of 170 disclosures of wrongdoing received between 2008 and 2010, only nine were
accepted for investigation. After three years of operation only four investigations had
Note that for what we would consider a successful outcome there are additional steps
involved, not shown below: the Commissioner’s (non-binding) recommendations to the
department concerned, and a case report to Parliament, and Parliament’s response (if any)
to this information. Based upon experience, it is by no means certain that these steps will
result in the wrongdoing being stopped or the wrongdoers sanctioned.
600
565 Disclosures of wrongdoing
2007-2010
500
400
300
200 170
100
9 4 0
0
General inquiry Disclosure submitted Investigation begun Investigation Finding of wrongdoing
completed
Complaints of reprisal
During the two-year period between 2008 and 2010, the Commissioner rejected 18 cases
on the basis that “the disclosure did not stem from a protected disclosure”, six cases on
the basis that the adverse actions “did not meet the definition of reprisal”, and another six
because the whistleblower did not file a complaint within 60 days of the reprisals starting.
During this same two-year period, twelve complaints of reprisal were rejected because
the Commissioner considered that they had been or could be better dealt with by someone
else. It seems outrageous that her office should ever refuse to deal with alleged reprisals
on this basis, since there is no other agency in Canada mandated to provide protection to
whistleblowers. By refusing to accept such cases the Commissioner’s office has denied
due process to people who have no other possible remedy.
Combined, these reasons for refusal have blocked almost every case. Out of 58
complaints, only four led to investigations. The two investigations completed found no
reprisal. (Two investigations were not yet complete.) In three years the Commissioner
referred not a single case of reprisal to the Tribunal.
70
Complaints of reprisal
2007-2010
60 58
50
40
30
20
10
4
2
0 0 0
0
Complaint Investigation Investigation Finding of reprisal Referral to tribunal Tribunal finds
submitted begun completed reprisal
Of 58 complaints of reprisal received between 2008 and 2010, only four were accepted
for investigation. After three years of operation only two investigations had been
completed, none had resulted in a finding of reprisal and hence the Tribunal that is
charged with adjudicating cases of reprisal never sat.
Based on experience, by far the most arduous, expensive and time-consuming part of this
process will be the tribunal hearings: these may last for years. Yet because the integrity
Commissioner acts as the gatekeeper to the tribunal, no-one has yet reached this step.
Everyone fell at the first couple of hurdles on this very long obstacle course.
We intend to engage with others who are willing to participate, including our sister
organizations in the USA, UK and Australia. We will not rewrite the law, but we will set
out what we believe to be the best strategy for going forward, and specify the types of
changes required.
Some of the solutions are obvious and suitable amendments already drafted. However,
there are some issues where the answer may not be straightforward, and some careful
thought is required, for example:
1. Securing whistleblower protection for private sector employees
The need for this coverage (and the challenges in achieving it) were explained in
the introduction
2. Introducing a ‘False Claims Act’ approach
When to introduce legislation that gives whistleblowers legal tools and financial
resources to prosecute wrongdoers themselves (modeled on the False Claims
Act). This complements traditional whistleblower laws and has proven to be a
powerful tool to prevent companies from defrauding the government
3. Providing multiple viable channels for blowing the whistle
This is important because, due to institutional hostility to whistleblowers, some of
the theoretically-available channels are often ‘out of action’ at any given time. For
example, because OPSIC was given exclusive jurisdiction over whistleblower
cases there was a complete system breakdown for three and a half years because
one person – the Commissioner – was reluctant to find wrongdoing. There was no
other channel available to whistleblowers.
As a minimum, OPSIC’s exclusive jurisdiction over whistleblower cases needs to
be eliminated. The Tribunal should also be eliminated since this is certain to be
much less effective than our normal court system. Whistleblowers also need to
have direct, unimpeded access to the courts (with appropriate legal assistance) to
protect themselves from reprisals, rather than being forced to rely on a third party
such as OPSIC to act on their behalf.
The government needs to be a bit more humble this time. Rather than touting the
supposedly world-class uniqueness of our ‘made in Canada’ solution (which didn’t work
at all) it needs to learn from others and adopt tried-and-tested best practices that have
been proven to work elsewhere. Human nature and the tactics of wrongdoers are the same
the world over, and our legal system has much in common with some of these other
jurisdictions.
We hope that this time the government will choose to listen to the ideas and experience of
NGOs and other organizations that are dedicated to the issue of government
accountability and whistleblower rights.
i
The Government Ethics Coalition is a Democracy Watch-coordinated, nation-wide alliance made up of
more than 30 citizen groups with a total membership of more than 3 million Canadians.