Trudeau can fix our broken whistleblowing system: here’s why and how

This piece was first published in the Hill Times on March 20, 2017.

The House Government Operations Committee deserves kudos for taking the bull by the horns in its review of Canada’s failed system for protecting government whistleblowers. This week the committee will hear from no less than four experts representing countries that have much better laws: the U.S., U.K., Australia, and Ireland.

The comparisons these experts can offer will be eye-opening, since the Canadian system simply does not protect whistleblowers from reprisals. In more than 10 years not a single truth-teller has been awarded a remedy by the Public Servants Disclosure Protection Tribunal (the only body that can do so), and not a single aggressor has suffered consequences for taking reprisals.

In Canada, it’s more dangerous to kick a dog than to destroy a whistleblower’s life. If you attack a helpless animal, someone might see you. A video of the incident might go viral online, and you might face public outrage and damage to your reputation, even your career. But if you destroy a whistleblower’s life in plain sight—through bullying and harassment, unfair dismissal and blacklisting—it’s unlikely that you will face any consequences.

Even if you are reported to our Public Sector Integrity Commissioner and he decides that reprisals took place (which he rarely does) he has the power (which he almost always uses) to block the tribunal from taking any action against you.… Read the rest

Whistleblower protection: who really pulls the strings?

This piece first appeared in the Hill Times on February 27, 2017.

When examining the sorry track record of the Public Sector Integrity Commissioner’s Office, it’s easy to overlook those primarily responsible: it was Privy Council Office (PCO) and the Treasury Board Secretariat (TBS), working mostly behind the scenes, who—intentionally or not—set up PSIC to fail. Here’s how it was done.

The Role of Treasury Board:
Treasury Board drafted faulty legislation

Given the wide range of serious shortcomings in the Public Servants Disclosure Protection Act (PSDPA), it’s difficult to believe that the drafters intended it to work—unless they were completely oblivious of best practices and other jurisdictions’ experience.

The most glaring example of this is the absence of a ‘reverse onus’ provision. The PSDPA puts the onus on whistleblowers to prove that the actions taken against them were reprisals—an almost impossible task. Effective whistleblowing laws shift the burden of proof to the employer to show that adverse actions were not intended as reprisals. This has been well understood for literally decades—since the disastrous experience of the Merit System Protection Board (in the U.S.) in the early 1980s. Without a reverse onus, of the first 2,000 whistleblowers who submitted claims of reprisal, only four prevailed.… Read the rest

Is the public sector integrity commissioner a friend or foe to whistleblowers?

This piece was first published in the Hill Times on February 20, 2017.

Last week, I wrote about the shortcomings of our government whistleblower protection system by examining the law itself. But that’s only half of the story: the efficacy of the program depends equally on those managing it, especially the Public Sector Integrity Commissioner.

This position, created in 2006, is a powerful one: the commissioner is an agent of Parliament, like the auditor general, with formidable investigative powers. However, unlike the Office of the Auditor General, the Office of the Integrity Commissioner (PSIC) does not have a proud track record—in fact it has been a troubled agency from day one.

These troubles have arisen, not because of the many shortcomings in the law but because of the actions of successive com- missioners, some of whom have consistently been criticized by the auditor general or the courts for neglecting their mandate and abusing their authority.

Over the past decade, all three successive commissioners have used similar methods which, by design or not, result in whistleblowers being discouraged or prevented from going to PSIC—and being denied protection when they do. Let’s look at a few examples.

The first two commissioners—In several cases  Ouimet and Dion—both took steps to water down or re-interpret PSIC’s mandate.Read the rest