FAIR publishes damning critique of federal whistleblower protection law

February 24, 2011

At a press conference today an alliance of more than 30 accountability organizations called for urgent reforms to the whistleblower legislation that provided the mandate of now-disgraced former Integrity Commissioner Christiane Ouimet’s office stating:

“The collapse of the government’s whistleblower protection system was not only due to the former commissioner’s egregious misconduct: she was aided and abetted by deeply flawed legislation that gave her far too much discretion to turn people away and ensured that most whistleblower cases would be rejected.”

FAIR (Federal Accountability Initiative for Reform), a whistleblower charity that has studied the legislation and monitored its implementation since 2007, published today its 24-page analysis of the Public Servants Disclosure Protection Act, setting out 26 serious shortcomings under 8 broad categories.

David Hutton, executive director of FAIR stated “Our analysis shows that this law does not provide the ‘ironclad protection’ for whistleblowers that was promised. It is more like a bureaucratic ‘Temple of Doom’ – a labyrinth of traps and pitfalls that will ensure that few if any whistleblowers can ever prevail. It’s also a charter of rights for wrongdoers, ensuring that few if any allegations of misconduct will be properly investigated.”

The accountability organizations are calling for the scheduled 5-year review of the legislation to be brought forward, and for the reformed legislation to be applied to the backlog of more than 200 whistleblower cases closed by Ouimet that the Auditor General recommended should be re-examined – otherwise many cases that have merit will remain closed due to loopholes in the law.

FAIR is working with Canadian NGOs to build a consensus regarding the specific reforms required, and also drawing upon the expertise of countries such as the USA, UK and Australia that have had far more experience (and success) than Canada in protecting honest employees who speak out about wrongdoing. “We cannot leave the development of such important legislation to government lawyers alone, since they clearly dropped the ball last time” said Hutton.

The following is an excerpt from FAIR's detailed analysis.
See the full text here, with explanations of each of the problems identified:
What's Wrong With the PSDPA (pdf) 

What's Wrong With The PSDPA

An analysis of the Public Servants Disclosure Protection Act (PSDPA)

Introduction

This document represents the first step in a public process designed to build consensus around how to fix Canada’s broken whistleblower protection legislation, the Public Servants Disclosure Protection Act (PSDPA). Successive governments have done such a poor job on this file – ignoring expert advice and blundering as a result – that we cannot leave this task entirely in their hands. It’s essential that this time the best available expertise be brought to bear. Fortunately the world’s leading experts in this field mostly work for NGOs that are willing to provide their advice for free: a valuable resource that we intend to draw upon.

Our focus in this first document is on what’s wrong with the current system, to ensure that the many serious problems are properly understood. The next step is to agree on and articulate practical solutions. Our view is that this system is so badly broken that some major changes are required to fix it: it cannot be put right by tinkering at the edges.

Some of the solutions are relatively simple and obvious, and have already been suggested by FAIR and by organizations such as the Government Ethics Coalition. A set of fifteen well-designed amendments already exists, which were drafted by the Senate in 2006, after examining the legislation and correctly identifying many of the problems. (Unfortunately the government rejected all of these amendments.)

However, some of the solutions are not obvious and require some kind of strategic decision or radical departure from the current framework. Here is one example:

Coverage of the private sector
A system that protects government but not private sector employees is like a bicycle with one square wheel. For example, how can our food supply ever be safe if the government inspectors (who only visit occasionally) are protected from reprisals for reporting problems – but plant inspectors and line employees who work there all the time are not?

The UK enacted whistleblower protection for all employees more than a decade ago. This has been highly successful – but it was built upon a strong existing system for protecting the rights of all employees, regardless of where they work. However no such system exists in Canada to provide a starting point.

In addition, corporations have vigorously opposed efforts to extend whistleblower protection to their employees. Given the considerable political clout of corporations in Canada, this lobby could block attempted reforms, possibly resulting in no reforms at all. This is what happened in the 1980’s to an early legislative initiative by the Government Accountability Project in the USA.

This is why we believe that it’s important to engage in a thoughtful and well-informed discussion about how to fix the current system, taking into account what’s permissible in our legal system, what’s practical to implement, and what can be successfully navigated through our political system.

Future versions of this document will expand upon these issues and possible solutions.

Executive Summary

During the passage of the PSDPA in 2006, the Government claimed that it would provide ‘ironclad’ protection for whistleblowers, and that it is the “Mount Everest” of whistleblower protection around the world. The reality has been very different.

When FAIR testified to Parliament we predicted that the legislation would fail, but we could not have imagined how badly. A combination of flawed legislation and improper administration created a system that in three years uncovered not a single finding of wrongdoing and protected not a single whistleblower from reprisals. The Commissioner appointed to protect government whistleblowers resigned in disgrace following a report by the Auditor General condemning her behaviour. The credibility of the entire system is currently in tatters: it needs a complete overhaul.

We first published this document in 2007, based on analysis of the legislation before it came into force. At that time we warned public servants of the pitfalls and urged them to be cautious in using this new regime. After seeing the law applied in practice we have identified many more problems, and the behaviour of the former Commissioner has dramatically illustrated how faulty legislation facilitates maladministration. Our advice to whistleblowers remains much the same: do not use this system without first understanding fully how it works and the potential pitfalls. And pay special attention to the track record of the responsible agency – the Office of the Public Sector Integrity Commissioner (OPSIC).

Will our message change with the appointment of a new Commissioner? Not likely: major changes in the law are required before anyone could trust this system to work effectively.

The basic approach of the Act – creating a complete new quasi-judicial process just for whistleblowers – is misguided and suspect, creating a secretive, unaccountable regime, hermetically sealed off from our courts and from the media. Experience has shown that watchdog agencies constituted like this are invariably protective of the establishment and indifferent or even hostile to whistleblowers.

This strategy is costly and wasteful, creating two new agencies that have spent millions and achieved nothing useful. Not only has this resulted in the waste of significant public monies, but it is a missed opportunity to adopt methods that work properly and are cost-effective.

The text of the law is a bloated, unwieldy mess. It creates a labyrinth of complex provisions, full of ambiguities, exceptions and repetition, which almost no-one can claim to understand fully. It stands in stark contrast to the brevity, simplicity and clarity that we find in whistleblower legislation that has proven to be effective.

As we examine the law, section by section, we find that virtually every feature is flawed. It ignores best practice, decades of experience in other jurisdictions, and the advice of internationally-renowned experts who were called to Ottawa to give testimony.

From the outset we have expressed serious concerns about the way in which the law has been administered by the Public Sector Integrity Commissioner, questioning her effectiveness in 2008 and calling for her to be replaced in 2009. The Auditor General’s recent report, exposing egregious conduct by the Commissioner, confirms some of our concerns but does not address others.

Even if the Commissioner had not been an abusive boss, had not engaged in reprisals against some of her staff, and had not rejected cases without proper due process – in other words, even if she had acted entirely properly – the current law would still have allowed her to pursue a largely bogus “prevention” strategy to the virtual exclusion of investigations, allowing the investigative capacity of her office to be gutted, while building up a substantial cadre of lawyers who were likely pressured to defend the wrongdoers rather than the whistleblowers.

Nothing in the law compels any future Commissioner to adopt a different strategy, and in fact the law as it stands ensures that most cases will be rejected on technicalities, that few cases will ever be investigated, and that few whistleblowers will ever prevail in cases of reprisal.

Further, the law provides no credible mechanism for ensuring that wrongdoers – including those in high places – are appropriately sanctioned. Experience has shown that merely reporting wrongdoing to Parliament does not do the job. Properly designed whistleblower protection protects the public interest by providing a powerful deterrent effect – potential wrongdoers see the risks and think twice. Without a robust and dependable means of administering sanctions there is no deterrent effect.

The bottom line is that this regime is not working – in fact it has caused great harm. It is not the safe haven that was promised to honest employees. Rather than deterring wrongdoers, it has surely emboldened them, secure in the knowledge that witnesses to their misdeeds can easily be silenced.

It has also facilitated reprisals against dozens of truth-tellers who courageously came forward, believing the promises that they would be protected. Many of these people have told us about the vicious, career-ending reprisals that they are now suffering. Their lives are in ruins, and the “ironclad” protection that they were promised is nowhere to be seen. There was no safe haven for them.

In the remainder of this document we will elaborate on the problems summarized above. Clearly this failed system requires major reform and FAIR will contribute to the debate by publicizing specific proposals designed to create a system that will work.

A Word To Truthtellers – Your Predicament

Perhaps your boss is pressuring you to omit important information from your reports, to sanitize your audit findings, to approve transactions that break the rules, or just to turn a blind eye and pretend that some misconduct isn’t happening. Perhaps these wrongdoings are mainly about misuse of public money, or perhaps they are about issues that could affect the lives of many Canadians such as tainted food or water, contaminated drugs, or leaking nuclear reactors.

Your predicament is that you feel compelled to speak out – for your own personal sanity and self-respect and to protect the public interest – but you are not sure how to go about this, and you fear that there might be negative repercussions for you.

You need to understand that expressing truths that are inconvenient to those in power is inherently dangerous and can cause serious harm to you career, to you and your family’s wellbeing, even to your physical and mental health.

This has been the experience of others who refused to overlook, condone or collaborate in wrongdoing: many have found themselves facing management denial of the problem and severe, calculated reprisals designed to silence, punish and discredit them. So, before doing anything, you must arm yourself with knowledge, for example: about the experiences of others; about the relevant legislation that may apply in your situation; about the likelihood of obtaining legal support (e.g. from your union) in the upcoming battle; and so on.

The FAIR website (fairwhistleblower.ca) provides a wealth of information relevant to Canadian whistleblowers, and links to other valuable resources. You should read this document alongside another FAIR publication: The Public Servants Disclosure Protection Act Explained, which summarizes in simple terms the main processes created by the legislation.

Trying to draw attention to wrongdoing is inherently dangerous, and those who do so often suffer from relentless retaliation, typically orchestrated by their superiors. Fear of such reprisals silences most potential truth-tellers, who rightly fear for their careers, their livelihood and the potential effect on their families. This is why there have been so many scandals where no-one came forward – even in situations where many people knew what was going on and innocent people were being harmed as a result.

As long as the law does not provide any effective protection for truth-tellers, we cannot blame those who chose to remain silent rather than martyr themselves and their families, especially when there is little chance of bringing about any change.

We hope that this document will help whistleblowers to determine the best course of action, to protect the public interest without bringing great harm upon themselves and their loved ones. We also hope that it will spur lawmakers to implement significant reforms, rather than tinkering at the edges of a broken system. 

List of Key Problems

1) The scope of the law is very narrow

• For members of the Armed Forces, CSIS or the RCMP, the protection from reprisals is either limited or non-existent
• Government misconduct involving the private sector cannot be investigated properly
• The law does not address private sector misconduct at all

2) The range of avenues (for seeking investigation and redress) has been restricted rather than expanded

• All means of access to our normal courts are blocked
• There is little protection against bullying and harassment – for any employee
• Going public or disclosing to the media is strictly prohibited in most circumstances

3) The coverage of wrongdoing excludes most real-life situations

• Restrictive definition of wrongdoing
• Jurisdictional reasons for refusal to deal with disclosures
• Other vague and subjective reasons for refusal to deal with disclosures

4) The provisions for investigations and corrective action are weak

• The Commissioner is restricted to a reactive, fragmented approach
• There is no reliable mechanism to correct wrongdoing or discipline wrongdoers

5) Most complaints of reprisal are likely to be rejected

• Jurisdictional reasons to reject a complaint of reprisal
• Short time limit to file a complaint
• Definitional reasons for rejection of a complaint
• The Commissioner need not refer any case to the tribunal
• Non-government whistleblowers effectively have no protection

6) The tribunal is unlikely to protect anyone

• Near-impossible burden of proof
• Lack of legal assistance
• No access to courts
• Inadequate penalties and remedies

7) The entire process is shrouded in impenetrable secrecy

• Access to Information
• Misclassification of documents
• Secret hearings
• Decisions need not be filed with federal Court
• Gag orders

8) The legal strategy is perverse and ill-conceived

• The law is unwieldy, complex and costly

See the full text here, with explanations of each of these problems:
What's Wrong With the PSDPA (pdf) 

Other Sources Of Information

1. The Public Servants Disclosure Protection Act Explained 
   A concise, plain English explanation of the main whistleblower provisions of the Federal Accountability Act.
2. The Whistleblower's Handbook 
   How to be an Effective Resister. By Professor Brian Martin.
3. OPSIC performance 2007-2010 
   Statistics and graphs showing the performance of the OPSIC during its first three years of operation.
4. OPSIC case rejections 2008-2010 
   Statistics and graphs showing the reasons given by OPSIC for refusing to deal with cases.