Time to turn a new leaf with whistleblowers

We are now about six months into the new Liberal government mandate. It’s a good time to stop and take stock. From a whistleblowing viewpoint, has anything changed under the new regime?

There are some indicators of a positive change. In November 2015, scientists were reported to have been “unmuzzled.” We’ve also heard from public servants speaking off the record about a positive change in culture inside government; impartial advice is again valued. The new government has also dropped several legal cases—for example, one in which the previous government tried to silence Cindy Blackstock and her efforts to get fair funding for aboriginal education.

On the other hand, there are also negative indicators. While the Liberals promised to be open by default with information—and continue to reinforce this message—they have recently announced that reforms to the Access to Information Act will have to wait until 2018. This is a major disappointment for advocates. They believe that good recommendations for change already exist and simply have to be enacted. So why the wait? After 10 years of Conservative government, none of the skeletons in the closet will belong to the Liberals. There are still significant delays in obtaining information from departments under the ATI. Some departments, such as Public Services and Procurement, have actually regressed since the change in government.

With respect to whistleblowers, the picture looks as bleak as ever. Several remain locked in battle with the government, desperately trying to get their jobs back. One is Sylvie Therrien, who blew the whistle on a system of quotas for employment insurance investigators. These quotas meant that investigators were being encouraged to reject EI claimants for the flimsiest of reasons. Rejected claimants would then have to navigate a long and complicated system of appeals, a process that could take years. Therrien leaked information about the policy to the press, and was publicly called a liar. When evidence emerged that she was telling the truth, ministers claimed they were merely “targets.” Therrien was fi red, and, of course, her claims for EI rejected.

While the public and opposition parties weren’t fooled, the Conservatives were successful in at least one respect: in her fight to get her job back, they have reframed the issue around her conduct, and not the fact that she was essentially ordered to reject claimants who should have been accepted. Her case is in front of the Public Service Labour Relations Board, but she faces an uphill battle.

With the change of government, Therrien hoped for relief. Promises were made before the election, after all. She had been called a hero by the Liberals. In January, however, she learned that this was not to be. It is difficult to reconcile the positive tone of this still-young government with breaking its word with the reversal of its commitment and refusal to settle the matter. Possibly an answer lies in taking into account the bureaucratic culture against which Therrien had to speak and the fact that the public servants advising the new government on the fi le probably had a direct hand in both the policy she objected to and the reprisals against her. Is the decision based on advice from this quarter?

And perhaps this is the nub of the matter: how can any government change the prevailing culture and practices of an entrenched bureaucracy, particularly when members are implicated in questionable practices? We can easily imagine a scenario in which a senior executive tells the new minister, who knows no better, that Therrien was a rogue employee who had it completely wrong, that reinstating her or settling the case would set a bad precedent—and perhaps encourage others to copy her. There were, after all, alternative avenues for Therrien to follow in the case of real wrongdoing, and if she was disagreeing with a policy, well, it isn’t her role to object.

On the latter point, there is some truth. Public servants should faithfully implement legitimate policy no matter what their ethical stance. An official who is personally against same-sex marriage must still issue a marriage license to such a couple if the law says so. The opposite is also true. It is up to Parliament and the courts to strike down unjust laws and policies. A problem, however, emerges when the policy or practice is secret or causes direct and immediate harm. When there is no way for parliamentarians or the public to know a problem exists there is also no way for them to fix it. And in her case, Therrien did not refuse to reject EI claimants: she refused to reject legitimate claimants and informed the public of a secret, highly unethical policy targeting vulnerable Canadians. This, surely, is the kind of thing the new government wants to stop.

The other possible answer, and one we hope is not the truth, is that Liberals have chosen power over honour. Having the power, they can do what they want, not what they promised to do.

As to the other avenues available to Therrien, there were really none. Internal complaints such as this are typically investigated by someone considered safe, with an eye to making the matter go away. This is precisely what appeared to happen in Therrien’s case. As for the Office of the Public Sector Integrity Commissioner (OPSIC), it rejected her complaint on the basis that the law under which it operates bars it from investigating. This excuse has worn thin, and the incredibly low rate of investigations and findings by the office (11 in 10 years) suggest that it is a multi-million dollar piece of window dressing.

No senior bureaucrats have ever been implicated, even when the circumstances of the wrongdoing cases might reasonably have invited questions about poor oversight or complicity. The scandal that led to the resignation of former commissioner Christiane Ouimet also pointed at serious problems in the offi ce which have not been addressed. Let’s hope the new government and its ministers will take another look at Therrien’s case and treat objections from senior executives with a certain amount of skepticism. Across government, many officials who implemented some of the former government’s less savoury policies remain in place. Sometimes they were so enthusiastic that they became part of the problem, as in the case of the campaign against Cindy Blackstock. Rather than worrying about a fl ood of whistleblowers, it would be more constructive to reform OPSIC and its mandate, and other internal reporting mechanisms, so that internal whistleblowing becomes safe and effective (and, perhaps, make external whistleblowing unnecessary). As for ending Therrien’s ordeal, it would simply send a message that things really have changed.

This piece first appeared in the Hill Times on April 25, 2016. 

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