Protecting the whistleblowers

By Duff Conacher on June 26, 2008

Federal Public Sector Integrity Commissioner Christiane Ouimet recently reported that she received only 59 complaints about government wrongdoing from whistleblowers in her first year in office.

While some commentators claim that there are few complaints because little wrongdoing occurs in the federal government, in fact no one knows the level of wrongdoing because no one is effectively protected from being unjustifiably punished for reporting wrongdoing.

Although the Commissioner has full powers to investigate complaints about wrongdoing and penalties suffered by the whistleblower, not even all government employees can file complaints with the Commissioner and be protected from retaliation if their complaint proves to be valid.                  Whatever level of wrongdoing is occurring in the federal government, the key questions are: can anyone who knows about it report it to enforcement agencies without fear of retaliation (and will they get full compensation if they face retaliation)?; will the wrongdoing be corrected?; and will the wrongdoers be effectively penalized?

The U.S. established its whistleblower protection system 30 years ago, and its track record along with the experience in other countries show clearly that Canada’s system must be changed in the following ways to protect whistleblowers effectively:


• As the federal Conservatives promised during the last election, members of the public, government contractors, politicians and political staff must be protected from retaliation if they report wrongdoing (currently not even all government employees are protected);


• Whistleblowers must be allowed to complain in all cases directly to the Commissioner (instead of the current requirement to complain first in private to their boss unless they can prove to an as-yet-unknown standard that their boss would not address the complaint);

• The person alleged to have penalized a whistleblower for reporting wrongdoing must be required to prove that they did not impose the penalty (currently, the whistleblower has to prove to some as-yet-unknown standard that they were punished);


• Whistleblowers must be given at least one year to file a complaint about retaliation they have faced for blowing the whistle (currently they only have two months);


• Whistleblowers must have access to a lawyer throughout the process of investigating their allegations (currently, the Commissioner can provide a whistleblower the inadequate amount of only $1,500-$3,000 to pay for a lawyer);


• If their complaint proves to be true, there must be a guarantee that whistleblowers will receive adequate compensation (at least six months pay) to move to a different job if staying in their current position is too difficult (currently, compensation is not guaranteed), and;


• Last, but by no means least, the identities of wrongdoers must be disclosed to the public (currently, the government often claims that the federal privacy law prohibits such disclosure).


In addition to these flaws which will continue to discourage most federal government employees from even trying to correct wrongdoing, the Public Servants Disclosure Protection Tribunal (the body which will actually decide whether wrongdoing and/or retaliation has occurred) may do as the courts did in the U.S. and interpret the rules in every possible way against the interests of protecting whistleblowers.

Between 1978 and 1989, U.S. courts ruled against whistleblowers (almost always for highly technical reasons) in 1,996 out of 2,000 cases.  Yes, that’s right, only four out of 2,000 whistleblowers actually received protection.

Finally, while the Public Sector Integrity Commissioner now has more independence from Cabinet ministers, the current Commissioner was still chosen by Cabinet (instead of by the Public Appointments Commission the Conservatives promised but have so far failed to establish).

The federal Liberals promised more than a decade ago to protect whistleblowers reporting wrongdoing in the federal government, but broke their promise and only established a system that was criticized by all observers, even by the first whistleblower protection officer Edward Keyserlingk (to his credit).

Equally disappointing is that only a couple of provincial and territorial governments have established whistleblower protection systems (and that those systems are similarly flawed).

All the federal (and provincial and territorial) political parties know that government secrecy leads to corruption, waste and abuse, and that the old saying is true that "sunshine is a good disinfectant.”

They also know that effective whistleblower protection is a key part of any open government system aimed at shining a light on internal government operations, in no small part because it empowers everyone to be a front-line inspector.

One can only hope that, sooner than later, enough of the parties across Canada turn their knowledge into action, and commit themselves to making the changes needed to have fully effective whistleblower protection, and fully open government.

Canadians deserve no less.


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