This is the story of how Canadian authorities suck up to a powerful industry that has a track record of bad behaviour, how public servants who get in the way are punished, and how the watchdog that’s supposed to investigate suspected wrongdoing is turning a blind eye.
Canada’s Integrity Commissioner Mario Dion, who is responsible for protecting government whistleblowers and investigating their allegations of wrongdoing, recently referred his third case to the Public Servants Disclosure Protection Tribunal created to examine alleged reprisals against whistleblowers.
This flurry of activity might suggest that Dion, successor to the disgraced former commissioner Christiane Ouimet, is hot on the trail of wrongdoers and vigorously protecting his witnesses.
But to informed observers Dion seems an ineffective watchdog, in full pursuit of inconsequential cases that make it appear that he is doing something—without rocking the boat or embarrassing the senior officials who picked him for this job.
Health Canada drug approvals
The story begins in 1998 when three scientists testified to the Senate that Health Canada was pressuring them to approve drugs of unproven safety, including Monsanto’s bovine growth hormone, a product designed to boost the milk production of dairy cattle. The scientists’ testimony made headlines around the world and resulted in the hormone being banned in most developed countries. For this courageous act, which helped protect the health of millions, Dr. Shiv Chopra, Dr. Margaret Haydon, and Dr. Gérard Lambert are internationally recognized as heroes.
In spite of Health Canada’s humiliation before the Senate, there seemed to be little change in how it operated and in 2002 the scientists approached a newly-created whistleblower watchdog, the Public Sector Integrity Officer (PSIO), hoping to have their concerns properly investigated by an independent agency. But this would never happen, and in 2004 the department fired all three simultaneously on grounds of “insubordination.” They had continued to question the approval of potentially unsafe products up to the very end.
These events would be of little importance if the scientists’ concerns were misplaced, but regrettably they seem all too credible. Given the track record of the pharmaceutical industry, it seems not only possible but very likely that they are right.
The pharmaceutical industry is considered by some to be the tobacco industry of the 21st century by virtue of its similar business practices. In its pursuit of ever-greater profits it uses its vast resources to influence every aspect of the healthcare system, often using unethical and illegal methods. Like many of its peers, Pfizer, the world’s largest drug company, is a convicted felon in the United States. Since 2004, it has paid $2.75-billion in criminal fines and penalties, including $2.3-billion for fraudulently marketing Bextra and three other drugs. Although repeatedly prosecuted in the U.S. and other countries, in Canada these companies seem to get a free pass.
The industry’s clout here was on public display in 2009 when the government appointed Dr. Bernard Prigent, vice-president and medical director of Pfizer Canada, to the governing council of the Canadian Institutes for Health Research. The council has a $1-billion-a-year budget and funds the work of thousands of researchers across Canada. More than 3,700 people, including several prominent ethicists and researchers, signed a petition calling for withdrawal of the appointment, but the government refused, claiming that it could see no conflict of interest.
Health Canada no doubt also pleased the industry when it fired the scientists, then quickly rubber-stamped seven approvals that they had been blocking, including the release of Baytril for veterinary use. This is a highly-controversial decision. Studies suggest the overuse of antibiotics on factory-farmed animals is the main source of deadly new antibiotic-resistant strains of diseases such as E. coli. By approving Baytril, Health Canada may have put at risk our last line of defence against some of these superbugs, with potentially catastrophic implications for public health, both in Canada and internationally.
Canada has had a series of whistleblower watchdogs since 2001, all charged with investigating allegations of government misconduct. How could such serious concerns about Health Canada’s actions be ignored?
The first watchdog, the Public Sector Integrity Officer (PSIO), lacked the necessary powers. PSIO conducted an investigation that was inadequate, and which the scientists challenged by applying for a judicial review. The judge ordered PSIO to investigate properly. At this point the Public Sector Integrity Commissioner (PSIC), a new whistleblower watchdog with greater powers, was appointed and took over the case—which was by then already more than four years old.
But commissioner Christiane Ouimet would never find any wrongdoing during her three-and-a-half years in office. She sat on this particular case for 29 months before deciding not to investigate. She ruled that the alleged actions could not be wrongdoing—even though they seemed to violate the Food and Drugs Act and hence criminal law—because, she asserted, they were ‘policy decisions’. Using this distorted interpretation of the whistleblower legislation, virtually any crime that involves senior officials can be declared a policy decision, whereupon PSIC cannot investigate and the perpetrators become untouchable.
In 2010, Ouimet’s own egregious misconduct was finally exposed in a damning report by the auditor general and she was hustled into retirement, discredited and disgraced, but with a $500,000 payout. Inevitably, Dion had to re-examine all of the cases she had closed. But he too chose not to properly investigate the scientists’ concerns, on the identical grounds as Ouimet. The scientists, with the support of their union, have again applied for judicial review—for the second time on the same issue.
Thus, 10 years after misconduct was alleged that could affect the health of millions, it has still not been investigated properly by anyone.
More reprisals by other means
However, this does not mean that the authorities were doing nothing: they were busy taking care of the scientists who had tried to blow the whistle.
The scientists appealed their firing to the Public Service Labour Relations Board, and then endured seven years in limbo while the PSLRB conducted more than 100 days of hearings. They had to wait another year while adjudicator Ian Mackenzie pondered before finally delivering his decision. Lambert was to be reinstated with compensation for lost pay, but Chopra and Haydon were denied any remedy. The decision was absurd, since the three cases are essentially identical.
In our view, this PSLRB process, dragged out by government lawyers for years at taxpayers’ expense, amounted to a continuation of the reprisals the scientists had already suffered at the hands of their bosses at Health Canada. It shut them up and kept them out of circulation, denied them gainful employment—and then confirmed that for the most part they were just troublemakers who got what they deserved.
The Lambert case
The incident that Dion has just sent to the Tribunal occurred ten years ago. Lambert was removed from his position as acting Team Leader two months before this temporary appointment was due to end, and shortly before he was fired. This action cost him perhaps a few hundred dollars in pay—a pin-prick in comparison to the decade-long ordeal that Health Canada has since inflicted on him and his colleagues.
Yet this trifle is the issue on which Dion has chosen to unleash the full force of the Tribunal, which may now (like the PSLRB) hold hearings for months or years to determine whether this was a ‘reprisal’ under the whistleblower law, and whether Lambert should receive a remedy.
PSIC’s track record
The scientists’ concerns about drug approvals are just one of more than 300 formal complaints of wrongdoing submitted to PSIC in the five years since it was created, yet astonishingly, only one proven case of wrongdoing has been found. Even this was minor compared to some of the grave allegations that we know have been reported. PSIC seems to be avoiding the most serious cases, while pursuing others that seem much less significant.
So what is PSIC doing with its 35 staff? In our view it is largely pursuing trivia. While the Tribunal saddles up to go after a miniscule alleged reprisal against Lambert, other much more important matters will go unexamined—by PSIC or anyone else.
There will be no examination of whether the main actions taken against the scientists—the alleged protracted workplace harassment followed by abrupt firings—were in fact reprisals, though it seems transparently obvious that they were. PSLRB does not have the mandate to investigate this question and PSIC has refused to do so.
There will be no sanctions taken against those who allegedly pressured the scientists to give approvals, orchestrated apparent reprisals and then fired them. Indeed, the supervisor in question has been well taken care of. Access to information requests revealed that after her retirement she was paid by Treasury Board more than half a million dollars through a numbered company to direct Health Canada’s legal defence team—essentially to defend her own actions before PSLRB.
Above all, there will be no investigation of whether Health Canada is actually Big Pharma’s glove puppet, continuing to put Canadians’ health at risk by the reckless approval of products whose safety has not been proven. This ugly elephant of a concern remains hidden behind a smokescreen of inconsequential activity as integrity commissioner Dion chases after mice.
David Hutton is executive director of the Federal Accountability Initiative for Reform.
Original article on Hill Times website (subscription required)