When it comes to the protection of whistleblowers, Canada ranks near the bottom of western democracies that have taken up the issue. We are deficient when it comes to a strong legal framework and the development and administration of protection protocols in corporations and government.
There is also an extremely aggressive pushback by companies, governments and others against whistleblowers when their institutions are accused of wrongdoing.
When asked why Canada has such a meagre record of whistleblowers successfully taking on private corporations, David Hutton, executive director of Federal Accountability Initiative for Reform (FAIR), this country’s pre-eminent whistleblowers organization, answers quite bluntly:
“Because they have all been smashed down by their employers with threats about their jobs or lawsuits if they go public.”
In fact, there is no direct legal protection in Canada for whistleblowers working in the private sector. (See last year’s Review for “Whistleblower Protection Still in its Infancy in Canada” by Phillip Tunley for a rundown of the legal situation in this country.)
While Canada still fumbles with protection rights, the first law in the United States to protect those we now call whistleblowers in the federal civil servicewas passed way back in 1863. The law protected them from wrongful dismissal, and even provided a percentage of the money recovered or damages won by the government.
Since then, federal and state governments have passed a number of other laws which have expanded protection in both the public and private sectors. The British only got around to passing legislation in 1998, but it includes a provision that provides whistleblowers with protection against victimization and dismissal.
In 2007, Canada finally passed its Public Servants Disclosure Protection Act, which established a procedure for the disclosure of wrongdoing in the federal public sector, including the protection of whistleblowers. But the Public Service Modernization Act made things worse for federal employees, because it prohibits present or former civil servants from suing the federal government because of issues once they become whistleblowers. (See fairwhistleblower.ca for an analysis of the shortcomings of the PSDP Act.)
To make matters worse, along came Christiane Ouimet. A longtime bureaucrat, Ouimet was appointed the first federal public sector integrity commissioner by the Conservative government in 2007, and was responsible for the administration of the newly passed whistleblower protection law.
But the watchdog became the hound dog three years later when Sheila Fraser, then Canada’s celebrated auditor general, began an investigation into Ouimet’s performance.
Ouimet immediately resigned, and Fraser later issued a damning report, disclosing that Ouimet had intimidated employee whistleblowers and engaged in “retaliatory actions.”
The investigation also found that during Ouimet’s tenure, only five investigations were launched into the 228 complaints filed concerning alleged wrongdoing, and not even one instance of wrongdoing was deemed to have occurred. Lastly, it showed that 19 out of 22 of Ouimet’s staff had left in the previous year, and that complaints from some of them triggered the investigation. (It was later reported that Ouimet received $500,000 in severance for her 25 years of service in the federal civil service.)
Despite these dismal conditions, a number of Canadians have taken the challenge to raise issues of wrongdoing, first internally with their employers, and when that did not change anything, by going public. The FAIR website details cases involving more than 30 whistleblowers; their targets include abuse in federal, provincial and city governments, the RCMP and local police departments, the Canadian Armed Forces and other institutions including a hospital and a union. Here, from FAIR, are five prominent examples.
Gualtieri’s saga began in the early 1990s when she complained about waste and extravagance in the purchase of high-end accomodations for Canadian diplomats posted abroad. Among the examples of waste she chronicled was a multimilliondollar mansion in Tokyo that was allowed to stand empty for three to four years while the diplomat who was to occupy it received hundreds of thousands of dollars a year to rent a luxury apartment, also in Tokyo. She also claimed that milliondollar condos in Tokyo were used to house the ambassador’s butler and chef, a violation of the rules.
Following her reports, Gualtieri claimed foreign affairs brass began a pattern of harassment that eventually forced her to go on medical leave. In 1998, she filed a $30-million lawsuit against the federal government, claiming department officials emotionally abused and ostracized her.
The case dragged on for 10 years at various court levels before Gualtieri and the government reached an undisclosed settlement. During those years, Gualtieri took other action as well—she founded FAIR (Federal Accountability Initiative for Reform), the activist organization that works to protect whistleblowers who protect the public interest.
Cutler became a key whistleblower in the sponsorship scandal, and a prominent witness in the Gomery inquiry. A procurement officer with Public Works Department in Ottawa, Cutler refused to go along with improper procurement practices, and as a result suffered retaliation from management over the course of many years. He lodged a complaint with his superiors, which prompted a departmental audit of the advertising and public opinion division.
During the sponsorship investigation, Cutler tabled an inch-thick document that contained meticulous notes, memos and his own diary detailing how the rules were being broken. It can be argued that Cutler’s testimony was a key factor in the downfall of the Liberal government in the 2006 federal election.
The 'Health Canada Three'
In 1998, three Health Canada scientists in the Veterinary Drugs Directorate of Health Canada, Dr. Shiv Chopra, Dr. Margaret Haydon and Dr. Gérard Lambert, blew the whistle on the drug approval process for bovine growth hormone. They said human health concerns were being ignored due to pressure from drug company lobbyists. After years of dispute with Health Canada, all three were fired in 2004.
In 2011, Dr. Lambert was reinstated by the Public Service Labour Relations Board. The cases for the others are being appealed to Canada’s Federal Court. The three were awarded the first CJFE Integrity Award last year.
Dr. Nancy Olivieri
In 1998, Dr. Olivieri, a scientist at the Hospital for Sick Children in Toronto and clinical professor at the University of Toronto, discovered evidence suggesting that a drug she was testing might be life threatening. Apotex Inc., which partly funded her research, insisted that she should not publish her findings, and threatened legal action if she were to inform the patients in the trials. The University refused to intervene in spite of its responsibilities for public health and for scientific integrity.
After six years of legal proceedings and independent investigations that supported Dr. Olivieri’s findings, she reached a settlement with Apotex in 2004, which included a substantial payment to her. However, the company refused to pay, claiming that Olivieri had violated the terms of the settlement by “disparaging” the company or its drug. After another four years of litigation, Apotex was ordered by the Ontario Superior Court to pay up. In response, the company launched a new lawsuit against Dr. Olivieri. As of publication, this latest lawsuit has not been settled.
Although he does not like being referred to as a whistleblower, and says he was only doing his job, diplomat Richard Colvin faced a most ferocious attack when speaking against government wrongdoing. His opposition: Prime Minister Stephen Harper, Defence Minister Peter MacKay, their cabinet, their parliamentary caucus and the Conservative Party of Canada.
Colvin was a senior diplomat in Afghanistan in 2006–2007. He repeatedly raised concerns about the potential for torture of prisoners the Canadian military handed over to Afghan authorities. He sent memos to 79 government officials, including those in the Foreign Affairs and National Defence departments. When no action was taken, Colvin went to the Military Police Complaints Commission. Although 22 public servants were subpoenaed to testify, only Colvin did so after the Department of Justice lawyers sent letters to them.
Meanwhile, the issue boiled over on the political level: the minority Conservative government kept insisting that there had been no torture, no cover-up and the Canadian military had done no wrong, but the other parties eventually forced a House of Commons committee meeting.
Colvin told the committee that all detainees transferred by Canadians to Afghan prisons were likely tortured, and many of the prisoners were innocent. He derided the policies of Canada’s Armed Forces, which did not monitor their conditions, took days, weeks or months to notify the Red Cross, and kept poor records. Colvin said that for Afghan intelligence interrogators in Kandahar, torture was “a standard operating procedure.”
Government ministers responded immediately to Colvin’s testimony with an all-out attack on his credibility. Then Defence Minister Peter McKay told reporters Colvin’s evidence “was not credible…. what we’re talking about here is not only hearsay, we’re talking about basing much of his evidence on what the Taliban have been specifically instructed to lie about if captured.” During the continuing political uproar Prime Minister Harper prorogued Parliament for two months, deflecting attention from the issue.
Arnold Amber was a longtime executive producer with CBC Television. He was a union representative involved in an early federal government consultation on the drafting of whistleblower legislation.
Original article on CJFE website (part of CJFE annual report card, pdf file)