THE FEDERAL GOVERNMENT IS FAILING TO PROTECT WHISTLE-BLOWERS

The following article is an excerpt from a paper entitled The Federal Government is #Dismatling Democracy published by Voices-Voix.  I pulled out the section on Whistleblowers but the whole document should be mandatory reading by Canadians before they go to the polls this fall.  You can find the whole document at <http://voices-voix.ca/en/document/dismantling-democracy-stifling-debate-and-dissent-canada>

THE FEDERAL GOVERNMENT IS FAILING  TO PROTECT WHISTLE-BLOWERS 

Democratic processes and institutions are sometimes not enough to ensure the government remains accountable and responsive to the public’s needs.

Individuals who speak out against government misconduct, often described as whistle-blowers, deserve protection from reprisals and threats.

In December 2012, Edgar Schmidt, a senior lawyer in the Department of Justice, went public about the government’s failure to meet its obligations under the Charter. Specifically, Schmidt alleged that when reviewing proposed laws for compliance with the Canadian Bill of Rights and the Charter, government lawyers are being directed to approve all proposed legislation unless the draft law is “manifestly” or “certainly” inconsistent with human rights standards. This direction is inconsistent with the Canadian Bill of Rights, the Charter of Rights and Freedoms Examination

Regulations and the Statutory Instruments Act, which require the justice minister to notify Parliament if legislation is ‘likely’ inconsistent. Over the course of 2012, Schmidt repeatedly raised his concerns with the deputy minister, the chief legislative counsel and the associate deputy minister. Nothing was done in response to Schmidt’s concerns. Ultimately, Schmidt commenced legal proceedings against the government. He was suspended and banned from his office shortly thereafter. The legal proceedings are continuing.

Edgar Schmidt is not alone in experiencing reprisals after speaking out about government misconduct. In May 2008, Luc Pomerleau, a veteran biologist at the Canadian Food Inspection Agency with 20 years of unblemished public service, came across a document for approval by the Treasury Board outlining a series of significant cuts to food safety measures.  Pomerleau, who did not believe the document was confidential, forwarded it to his union as evidence of grave risks to the health and safety of Canadians. Two months later, he was fired for “gross misconduct” and “breaching security”, and deemed “unreliable”, entirely precluding him from working again in the public service. That same year: “20 people died from the bacterial infection listeriosis due to an outbreak at a meatpacking plant under federal inspection”.

Then, in 2012, the federal Public Sector Integrity Commissioner (PSIC) – who “handle[s] disclosures of wrongdoing and help[s] protect those who blow the whistle”– removed an advisory committee member, David Hutton, after he published an opinion piece in the Ottawa Citizen, accusing the PSIC of failing to properly investigate significant numbers of the complaints it receives, and jeopardizing the careers of whistle-blowers.  [It should be noted that when Hutton was removed from the committee, Canadians for Accountability and Democracy Watch, also members of the committee, quit in protest.]

The federal government has undertaken a multifaceted assault on processes and institutions that are critical to maintaining a healthy Canadian democracy. The government’s proroguing of Parliament, use of massive omnibus budget bills, and straight-jacketing of parliamentary committees misuse parliamentary conventions and processes to undermine parliamentary debate and scrutiny of its conduct and proposed policies. It has undermined the ability of the public service to provide robust and effective advice. And it has sought to avoid accountability by attacking public servants, whistle-blowers and heads of oversight agencies.

Characterizing the Harper government’s interference with democratic institutions, oversight agencies, constitutional conventions and the public service, Errol Mendes, professor of constitutional and international law at the University of Ottawa and editor-in-chief of the National Journal of Constitutional Law, states “this abuse of executive power is tilting toward totalitarian government and away from the foundations of democracy and the rule of law on which this country was founded”.

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Dangerous Déjà Vu for Veterans: Send the Omnibus Plate Back to the Chef

Veterans Affairs Minister Erin O’Toole

Veterans Affairs Minister Erin O’Toole (Hill Times photo)

 

Sean Bruyea

In a bizarre and never-ending déjà vu, government is ramming through Parliament the fourth piece of veterans’ legislation in a decade. It is plainly bad legislation swallowed inside yet another budget omnibus bill.

The proposed veterans’ programs are joined by a torrent of feel-good political announcements. Does the hype match reality? Do the programs fill the identified gaps and address the evidence-based recommendations?

No and no. The proposed veterans’ legislation should be sent back to the kitchen until what was ordered by veterans is finally served after 10 years of painful hunger.

Retirement Income Security Benefit

A new Retirement Income Security Benefit claims it will top up to 70% of what the veteran received from government prior to age 65. However this is based upon the veteran’s income loss benefit which already reduces military salary to 75%. This income loss benefit is inadequately adjusted for inflation to a maximum of 2% since military release from 1953 onwards. In the past twenty years, inflation has been above 2% nine of those years. Seventeen of the previous 20 years were above 2%.
For example, veterans released in 1996 have had their earnings loss benefit increased by approximately 30% while military salaries have increased 80%.

The retirement benefit therefore equates to the veteran effectively receiving 52.5% of their military salary, inadequately adjusted for inflation. The Ombudsman, Guy Parent, was quick to endorse this program during a partisan political announcement. Yet, Mr. Parent’s office clearly recommended a retirement benefit matching 70% of release salary, fully indexed for inflation.

The majority of veterans’ groups active in advocacy, the Ombudsman, Veterans Affairs Canada’s own advisory groups, and Parliament in 2010 have all repeatedly recommended that the 75% earnings loss benefit be substantively increased to anywhere from 90 to 100% of release income matching salary increases of a typical career of promotions. Civilian courts have been doing this for decades. Implementing this universally supported recommendation would result in a dignified income loss program which would in turn provide a dignified retirement benefit for our most injured veterans.

The consequence of government’s repeated dismissal of this evidenced-based research and recommendation: a paltry payout from this proposed retirement benefit which will go to just 261 veterans with disabilities by 2020.

Family Caregiver Relief Benefit

The Family Caregiver Relief Benefit is another puzzling creation. Only 351 family members by 2020 will qualify out of the anticipated 6000 totally impaired and disabled veterans.

No veteran group, parliamentary committee, ombudsman or advisory group asked for a benefit in this form. What others have asked for is everything from matching the DND Caregiver Benefit which pays up to $36,500 over any 365 cumulative days to providing spouses of disabled veterans with their own benefit to compensate for lost income in their poorly appreciated efforts to care for their struggling veteran spouses. One of the easiest solutions would be merely to open up the existing attendance allowance program to all injured veterans. The proposed family caregiver benefit pays $7238 per year equivalent to the lower levels of attendance allowance which pays up to $21,151.44 annually.

Critical Injury Benefit

The Critical Injury Benefit will provide a one-time payment of $70,000 to Canadian Forces members and veterans “for severe, sudden and traumatic injuries or acute diseases that are service related, regardless of whether they result in permanent disability”. Countless veterans have come forward telling us that disabling PTSD, traumatic brain injury or loss of organ function are being low-balled below the approximately $40,000 average lump sum payment for pain and suffering. How can government justify to veterans enduring lifelong disability that their pain and suffering merits far lower a payment than a veteran who temporarily suffered an injury?

This leads to the obvious question: from what obscure bureaucratic orifice did this proposal originate? Absolutely no one in the veterans’ community, the ombudsman’s office, parliament or advisory groups asked for this benefit. We know little of the criteria but we know it is highly restrictive: only two or three individuals per year will receive it from a totally disabled and permanently incapacitated population of 6000 veterans in 2020 and a current CF serving and veteran population of nearly 700,000 individuals.

How is this in any manner fulfilling Canada’s obligation to all of our veterans and their families? It does not. Why did government not do what all have been asking: increase the amount of the lump sum benefit to at least match court awards for pain and suffering? Why have so much time and tears been expended by suffering veterans for a potpourri of political pretense grudgingly helping too few.

Canada’s Obligation to Our Veterans and Their Families

We are inundated by slick PR campaigns and political photo shoots as to the importance of military service but when it comes to addressing shortcomings for those most in need, government delays, deflects and unfortunately dances on the suffering of our veterans and their families. Much of this rhetoric is centred upon how much Canada is indebted to our veterans and their families.

The new legislation proposes an obligation to our serving members, veterans and their families to provide “services, assistance and compensation”. It is more encompassing than some previous legislation but all offer little substance and are mostly meaningless. To what end is this obligation? To rehabilitate, re-establish, to offer opportunity, well-being, quality of life, education, retraining, employment or provide a clear service standard?

Professing an obligation absence a goal is hollow at best.

Why does this proposed obligation only recognize assistance to injured members, veterans and their families? Is Canada not responsible for all veterans? The duty of the Minister in the Department of Veterans Affairs Act is “the care, treatment or re-establishment in civil life of any person who served in the Canadian Forces” and “the care of the dependants or survivors”. At one time this included “retraining”. Is all of this not what government keeps claiming the new veterans charter accomplishes but has so far abysmally failed to deliver?

Why the Legislation Should be Sent Back to the Chef

These programs if passed without substantive change will set dangerous precedent.

First, they create yet more classes and subclasses of inequity between veterans. Second, unnecessary programs result in more red tape and more work for overstaffed frontline workers when merely expanding and improving existing programs will do more. Third, they will encourage government to create discriminatory policy under a political facade while simultaneously dismissing evidence-based research and widespread consensus of those directly affected who truly understand the options available.

Finally, government’s bullying with ‘it’s better than nothing’ attitude intimidates an already subserviently indoctrinated military culture to accept paltry scraps to compensate for genuine sacrifice and life-altering disabilities. Caving into bullying disguised as sweet-talk effectively endorses shoddily concocted programs. This gives license to government again to do nothing for the next five, ten or more years to fix these abominations while government ignores a host of outstanding programs veterans and their families need now.

Veterans must realize they deserve what they need and have it delivered in a timely fashion. Why would anyone swallow that which was never ordered or a spoonful from the menu haphazardly fried up a decade ago? Veterans deserve to have the dish remade as requested. Isn’t a fair and square meal the minimum that lifelong sacrifice deserves?

And let’s stop hiding veterans, let alone any unrelated legislation, in omnibus bills or otherwise ramming veterans’ programs through parliament.

Almost 120,000 Canadians have lost their lives and hundreds of thousands more have lived and continue to live with lifelong disabilities. They have done this to serve our nation in protecting democracy and its vital pillars of transparency, accountability and due process. Surely Parliament can do better for its veterans. Send the programs back to the chef.

This oped first appeared in the June 1, 2015 edition of the Hill Times.

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Harper’s Man Friday

Ian Bron and Allan Cutler

Last week, the government announced that Stephen Harper had appointed a new Integrity Commissioner, Joe Friday, who has been with the office since 2008 and was the last Commissioner’s Deputy. This was not a surprise to us, but it is a disappointment. It is also a slap in the face of conscientious public servants looking for a safe place to report misconduct. They, as well as the Canadian public have a right to expect an aggressive, thorough, and competent Office of the Public Sector Integrity Commissioner (OPSIC).

Friday served under both previous Commissioners, Christiane Ouimet and Mario Dion. Ouimet’s tenure was an unmitigated disaster. Just three and a half years into her tenure, she resigned in the face of a damning report from the Office of the Auditor General (OAG) that concluded she had been engaging in the very kinds of acts she was supposed to be preventing – harassment and reprisals against staff believed to be speaking out about abuse and mismanagement in her office. She left with her pension intact and a $500,000 lump sum. When called before Committee in 2010, Friday denied seeing anything wrong: “Madame Ouimet was carrying that out in her role as commissioner, which would be appropriate. Within that environment, I did not witness what I thought to be abusive behaviour, for example.”

Dion was much more politically astute than Ouimet. Under his tenure, there were ten cases of wrongdoing found in 4 years. They were relatively trivial, with no senior bureaucrats or politicians implicated. His office rejected a number we felt were deserving of investigation, and may have helped to facilitate the cover-up of serious misconduct in the case of Don Garrett, a contractor in B.C. who was unwittingly exposed to asbestos and then denied payment when he complained. The OAG agreed with our bleak assessment in several investigations on other cases where it found “…that the actions and omissions of PSIC senior managers [the Commissioner and Deputy Commissioner] in relation to this file amount to gross mismanagement.”

The fact that Friday was nominated despite being there while the scandals unfolded suggests that objective measures of performance are irrelevant. We feel that his solid record of protecting his bosses and not rocking the boat has served him well. Indeed, sources tell us that he was the preferred candidate from the outset. When Dion announced that he was moving on last year, a formal process was begun to give the appearance of competition to find a replacement. It was abandoned late last year, however, with word leaking out that a candidate had been selected.

It’s easy to point fingers at the current government, but the truth is that the appointment process has been subject to such machinations since at least Pierre Trudeau’s appointment of Michael Pitfield as Clerk. But we expected more when Stephen Harper became Prime Minister in 2006. Unfortunately, the promised Public Appointments Commission was scuttled, and the tendency of appointing Ottawa insiders known to be safe continues. Of course, there are anomalies – Kevin Page being one. Another exemplar, from outside Ottawa, is Ontario Ombudsman André Marin. Both worked hard to fulfill, and even expand, their mandates to best serve the public interest.

These “mavericks” seem to be received with a kind of injured shock by the senior bureaucracy. Don’t they understand that they should be grateful? That they shouldn’t bite the hand that feeds? They don’t, of course, which is exactly why they are effective. If there were a real appetite to clean up the way Ottawa works, such an individual would have been chosen.

Friday’s relationship with non-governmental organizations is also cause for concern. In 2012, Dion ejected David Hutton, then leading the Federal Accountability Initiative for Reform (FAIR), from the OPSIC consultative committee because he was “undermining” the work of OPSIC with public criticism. This was, Dion argued, driving people away. The argument is laughable for the complete misunderstanding of the role of NGOs such as FAIR, Democracy Watch, and Canadians for Accountability. We and Democracy Watch resigned in protest.

Friday has made it clear on at least one occasion that he shares these views, suggesting that we should be supporting OPSIC in its mission rather than pointing out shortcomings, suggesting that our criticism is morally reprehensible, and that we are impossible to work with. (And, given that our organizations are run on a shoestring by volunteers, one can only assume that he expects us to do this from the goodness of our hearts.)

This perspective betrays the mindset of the top politicians and bureaucrats in Ottawa: that they can do no wrong and an expectation that authority be kowtowed to. Anyone critical is to be attacked and marginalized. The irony, given the nature of OPSIC’s mandate, is palpable.

With Friday’s appointment, we can expect nothing to change for whistleblowers in Canada’s government. We have heard anecdotally that it is widely understood that OPSIC is not a safe or reliable place to report wrongdoing, and falling rates of reporting seem to confirm that. We sometimes still encourage people to go there, however, as there is a faint chance of success. But stories we have heard of people doing so and then facing reprisals at work are alarming. Increasingly, we advise people to seek outside avenues. Some appear to be heeding that advice. The Senate expenses scandal, after all, was broken when someone leaked documents from the Prime Minister’s Office.

We hope for change – but it is a faint hope. Friday begins his tenure with low expectations in an office that has itself been remonstrated for gross mismanagement. Will it continue as in the past or be a force for change? Only time will tell. Friday starts with the baggage of the past – his track record and previous history.

And that is perhaps the greatest irony of all: in seeking to repress dissent and make whistleblowing difficult and dangerous, this government, in nominating Friday, is going to lose control, not gain it. Potential whistleblowers will not trust internal avenues, so opportunities for a quiet fix will be lost.

This oped was first published in the Hill Times on April 6, 2015.

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