This piece was first published in the Hill Times on February 13, 2017.
Whistleblower protection advocates across Canada were celebrating last week when the news broke that Hon. Scott Brison, President of Treasury Board, had suddenly asked the Government Operations Committee (OGGO) to conduct a review of the federal whistleblower protection law (the PSDPA). This review, which by law should have taken place 5 years ago, has been steadfastly blocked by Treasury Board since 2012. Why the sudden change of heart? No-one knows.
The big question now is whether members of OGGO can find the time, determination and resources to do justice to this very important task, handed to them at very short notice.
Hearings began on Tuesday, and on Thursday morning three civil society witnesses were called – Allan Cutler, David Yazbeck and myself. We presented damning testimony regarding the dysfunctional nature of both the law and the Integrity Commissioner’s office. We pleaded with the committee to call a wide range of follow-up witnesses – outside experts rather than those running the system – in order to obtain a proper understanding of how badly broken the current system is. And we offered detailed suggestions on how to fix it. The Committee showed great interest in our testimony and asked excellent questions.The following is a sample of my remarks.
Why the law is broken
To explain just how broken our current system is, let’s follow the trajectory of a whistleblower seeking help from the Public Sector Integrity Commissioner’s office (PSIC).
When a whistleblower approaches PSIC to report serious wrongdoing, things may begin to go wrong for them almost immediately.
- One of the first people to learn about the whistleblower’s allegations will be the head of their department, who will be informed by the Integrity Commissioner. The Act claims that the whistleblower can be protected by keeping their name confidential, but in many situations this claim is bogus. Often the information in question is held by just a few people, and only the whistleblower has been asking questions about the legality of what is going on. And if it’s not obvious, departments will spare no effort in trying to track down the ‘traitor’ who ‘leaked’.
So in many cases the whistleblower’s cover is blown soon after approaching PSIC, and they become subject to reprisals designed to crush them. Their life in the workplace suddenly becomes a living hell.
- If the whistleblower still has any confidence in PSIC, they may go back again, this time to plead for protection from the reprisals. They now discover that their situation is worse than they thought.
- The law provides no mechanism to stop the reprisals: management can do whatever they like to the whistleblower, who just has to suck it up – until some time in the distant future when they may or may not be awarded a ‘remedy’ by a Tribunal i.e. some kind of compensation from for the harm done to them.
- But this cannot happen for some time: before the Commissioner refers any case to the Tribunal he must first conduct an investigation. This is often carried out in a leisurely, stop-start fashion, and may take a year or more: we know of one case that took two years.
- The investigation is likely to be superficial. When investigating disclosures of wrongdoing the Commissioner has all the formidable powers of the Inquiries Act and can compel witnesses and seize documents – but when investigating reprisals he has no such powers. He therefore has to rely upon the voluntary cooperation of the accused aggressors.
- Let’s say that after 6 or 12 months the investigation is complete and the Commissioner can now decide whether or not to make a referral to the Tribunal. Unfortunately by this time the whistleblower has typically already been destroyed: they have been emotionally crushed by months of isolation, bullying and harassment at work. They have then been fired on trumped up charges and blacklisted, rendering them unemployable in their chosen profession. They are in deep financial difficulties, in danger of losing their family home, and they are becoming estranged from their loved ones, who simply do not understand what is going on and why the family has to suffer so much. Their lives have been dramatically changed forever.
- If the Commissioner decides to make a referral to the Tribunal, this may seem like good news. But the Tribunal process is unlikely to help: in fact the whistleblower now learns that the worst is still to come.
- They are pitted against a team of lawyers representing the accused aggressors – all generously paid for by the government.
- The primary strategy of the defence is typically to delay by every means possible, in order to exhaust the whistleblower both financially and emotionally: so the Tribunal process may drag on for weeks or even months, even years, and the cost could run into tens of thousands of dollars.
- The whistleblower has to pay for their own lawyer, or persuade their union to pay – if they are unionized.
- Worst of all, the law puts the onus on the whistleblower to prove that the actions taken against them were intended as reprisals for blowing the whistle – rather than deserved punishment for supposed poor performance or insubordination. Since this is almost impossible to prove, the whistleblower’s case is doomed from the start.
- Faced with this situation, whistleblowers will settle in desperation, to escape the terrifying prospect of a protracted battle before the Tribunal. It is no accident that in the past ten years, not a single whistleblower has completed the Tribunal process.
- There is one more aspect of this process which is especially troubling. In making a referral to the Tribunal, the Commissioner can use either of two sections in the Act, 20.4 (1) (a) or 20.4 (1) (b). By using the first section, the Commissioner can completely block the Tribunal from taking action against the aggressors. Why does this sinister provision even exist? Who can say. But Commissioners have repeatedly used it: six out the seven referrals made to the Tribunal have been made under 20.4 (1) (a), thus protecting the aggressors from any sanctions.
So whistleblowers whose lives have been devastated by reprisals suffer the further indignity of seeing their oppressors – the very people who have ruined their lives – go scott free, guaranteed, thanks to the Integrity Commissioner. This is the final insult – twisting the knife in the wound.
This trajectory explains why whistleblowers are not flocking to PSIC for help. Anyone who does their homework quickly realizes that approaching PSIC may be worse than fruitless – it may be very damaging to their careers and their lives.
Over to the Committee
Ever since the scandalous public meltdown that took place under the first Integrity Commissioner, Christiane Ouimet, Canada has been viewed internationally as the ‘Enron of whistleblower protection’ – and since not much has changed since then, that reputation is just as well deserved today.
But we look now to the Committee, in the hope that real and positive changes may finally take place. Will the Committee call appropriate witnesses in order to fully grasp the numerous shortcomings of the law? Will it recommend powerful and appropriate fixes? And will the government pay any attention to its recommendations? The saga is only just beginning. Watch this space!
Senior Fellow, Centre For Free Expression, Ryerson University
Former Executive Director of FAIR
Next week: The Integrity Commissioner’s Office: friend or foe to whistleblowers?