The Operations Committee leaps into action to protect whistleblowers – or does it?

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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!

David Hutton
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?

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When I first started 10 years ago, whistleblowing was a dirty word

It has been 10 years since the Liberals’ Sponsorship Scandal and my elevation to be known as “The Whistleblower.” This was not my choice. Leadership comes in various forms. The most common is those who seek to be the leader. The least common is being forced to be a leader by representing something of importance. That is the role that I was assigned and not the role I chose.

Once identified, I had options of what to do with the label “The Whistleblower” given to me by the media during the Sponsorship Scandal. I could ignore it and fade into the background or use
it to try and make changes. The latter was my chosen route.

For the last 10 years, I have been representing whistleblowers and giving suggestions on how they might want to address their situations. The decisions are always theirs. Some, learning
what they face, have retreated and allowed corruption to continue. Fortunately, the majority have
had the courage of their convictions and have fought the good fight—usually unsuccessfully.

I have continued speaking and writing about whistleblowing—what it entails and how corruption is allowed to exist. I point out that there are only three types of participants in a corrupt situation—the abuser, the fighter (whistleblower) and the enablers. If you know it exists and do nothing, you condone corruption. The reaction of an audience is usually very interesting when they realize that there is no fourth choice.

What has changed, you might ask? The answer is everything and nothing. When I first started 10 years ago, whistleblowing was a dirty word. In fact, one journalist referred to me as “the Sponsorship Snitch.” The media claimed to be supportive but, in fact, the remarks addressed to me and about me were often negative. Some, such as Michael Harris, Dave Brown and Robert Fife, were extremely supportive. Others were not so kind.

The meanings of words do change. The use of “whistleblower” is no longer negative in the media. There is a greater understanding of the effort needed to try and correct corrupt or illegal practices. In fact, I have noted that the meaning is becoming positive in its usage. This is a significant change and not to be underestimated.

On the other hand, the actual experiences of whistleblowers have changed only slightly. For the most part, they still experience adversity. Their personal lives suffer. Their work careers are destroyed. It is a rare whistleblower who can fight against the prevailing wisdom, “What are you doing and why are you doing it to us?”

For my part, I am still the only federal public servant involved with the Sponsorship Scandal who has suffered financially. It often seems that the honesty does not pay. The taint continues. I have heard from more than one Liberal that I am to blame for their loss in the 2006 election and that they will never forget this.

In fact, I was told directly not to bother applying to be a Senator as the application would be “torn up.” This, by the way, is why I did not apply. There is no point when you are facing a rigged deck.

The truth is very different. I have never blamed the Liberal Party for what happened to me.
There were some Liberals involved in what was known as the Sponsorship Scandal. But every
party has some corrupt individuals. The fact is the vast majority of Liberals have integrity and good intentions. The few spoiled it for the majority. This same situation exists in the Conservative and NDP parties. People are human and in any large organization there are a few corrupt people.

In any event, the fight continues. Bradley Birkenfeld, the U.S. whistleblower who exposed
hidden off-shore accounts in his country, is willing to come to Canada to speak about $1-billion
in unpaid taxes due to off-shore accounts in Canada. Not so surprisingly, the House Finance
Committee does not want to hear from him. We have to wonder who is being protected if Canadian citizens are not being protected from tax fraud.

This piece first appeared in the Hill Times on November 21, 2016.

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Big gap between Liberal rhetoric and action on veterans issues

By Sean Bruyea

Veterans and Canadians better stop holding their breath. Minister of Veterans Affairs Kent Hehr is way behind schedule and doesn’t have the oomph to fulfill his mandate letter. Ultimately, Prime Minister Trudeau and the Liberal government will be charged and condemned for this bungling of veterans’ issues.

When broken down, Minister Hehr’s mandate letter listed 23 or so priority promises. Of those, one year into the mandate, only two have been fully implemented and another partially.

Injured veterans are in the process of receiving income-loss payments increased from 75 to 90 per cent of military salary. Also, the annual cap at two per cent has been removed, allowing the annual income to keep pace with the consumer price index. As for the partially fulfilled promises: the first of nine Veterans Affairs Canada (VAC) district offices has opened with a lengthy timetable for the remaining eight.

There is little excuse for delay for most other promises. It costs little to “end the time limit for surviving spouses to apply for vocational rehabilitation and assistance services.” Some cost more but are straightforward such as “increase the veteran survivor’s pension from 50 to 70 per cent.” Considering just more than 53,000 “survivors” currently collect pensions and approximately 3,000 sadly pass away each year, time is of the essence.

Expect bureaucratic muddling and manipulation on the rest.

Whenever a recommendation allows wiggle room, bureaucrats have addressed the bare minimum or a minor aspect of the recommendation. They then claimed the recommendation was addressed. VAC mandarins have long resisted guaranteed response and processing times. Hence, the Liberal promise to “deliver a higher standard of service and care” will likely result in some meaningless internal performance marker.

Like most of Canada’s federal departments, suffering little or no consequences for failure even when it causes real harm to Canadians is what many senior bureaucrats, especially those isolated in VAC’s Charlottetown head office, consider “public service.”

What about Justin Trudeau’s promise of returning to lifelong monthly tax-free payments for the pain and suffering of lifelong disabling injuries? VAC bureaucrats have already duped many in and outside advisory groups to reject the lifelong pension promise. Instead, bureaucratic handlers are feeding misleading information to the groups to accept one-time lump sums as compensation for a lifetime of anguish. Bureaucrats use such specious arguments as “the bureaucratic process takes too much time to change big things in a single mandate” or “there’s not enough money in the till.” In the case of veterans’ programs, both are grossly deceptive.

As for bureaucratic delays, the Liberal government galvanized a nation and multiple departments including the Canadian Forces to acquire and renovate accommodations, initiate screening, reinforce staffing in Middle Eastern embassies, process support payments, and provide health-care and education while arranging the transportation of 25,000 Syrian refugees to Canadian soil. Time taken: four months.

Military veterans understand the urgency of obligations. Fulfilling the rhetoric of government commitments is a daily duty for them. Veterans have been swimming in an ocean of disingenuous platitudes about the debt government and Canada owes them. What veterans can’t and shouldn’t have to understand and what fundamentally betrays their sacrifice for our nation is why bureaucratic process can delay or outright deny political direction and promise with impunity. Delaying and distorting Prime Minister Trudeau’s mandate promises is a moral forfeiture of the debt Canada tangibly owes our veterans.

Is there money in the till? It is as if each budget is a big surprise for bureaucrats discovering that there are 200,000 veterans and their survivors on the books. Unlike insurance companies and private pension plans, government is not required to put aside money now for veterans in the future. This is where reality and rhetoric clash. Veterans should not be made to suffer Ottawa’s inept fiscal planning. If there is a debt owed our veterans, and government fails to plan ahead, then government must incur fiscal debt to honour the moral debt to our veterans and their families.

Why has the diminishment of our Canadian Forces veterans been allowed to continue for 60 years under successive governments, all repeating the same insincere balderdash? Veterans Affairs has been a perpetual bridesmaid of ministries. Usually the most incompetent or inexperienced of cabinet members is appointed to this low priority portfolio.

Even with unprecedented attention upon veterans this past decade, the senior bureaucrats run the show. So-called widespread consultations are nothing more than a facade. Senior bureaucrats tenaciously cling to their version of stakeholders. Appointed to groups and invited to summits are individuals or organizations whose members have little or no stake in VAC programs and have little if any expertise in the field. Others will not meaningfully or publicly question the policy path that has been so damaging to veterans and their families this past decade under the lump-sum program known as the New Veterans Charter.

The New Veterans Charter is little more than an old-school income-loss and rehabilitation plan copying insurance models from the 1960s and ’70s. Ironically, lifelong compensation for pain and suffering is still a pillar of modern recognition and restitution of injury and loss. VAC bureaucrats are deceiving often naive or sycophantic veterans and pseudo-stakeholders.

Let’s look at a clear example of ministerial ineffectiveness and bureaucratic callous insouciance. Veterans and their families have been calling for a picture-identification cards for recognition and independent access to family benefits. If Minister Hehr in his unprecedented appointment as associate minster of National Defence cannot provide such a simple, inexpensive gesture of dignity, then there is little hope he or the Liberal camp will fully and substantively implement all the promises in this mandate or five more.

However, by following this path there may not be another mandate. Most Canadian voters were aware that veterans are getting the short end during the last election. Former prime minister Stephen Harper and the Conservatives paid the price for the antics and inaction of various ministers such as Julian Fantino. Prime Minister Trudeau and the Liberals may well pay the price for Minister Hehr’s lackadaisical approach to leadership.

This oped was first published in the Hill Times on October 31, 2016 (subscription only).

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