The Whistleblower Persecution Act
In the wake of the Auditor General’s startling revelations regarding misconduct by the government’s whistleblower watchdog, there’s a tendency to attribute all of the problems to former public sector integrity commissioner Christiane Ouimet’s actions.
The reality is that deeply flawed legislation – which experts confidently predicted would fail – gave Ouimet the discretion to turn away virtually all whistleblowers, denying them any possible remedy and effectively providing cover for dozens of accused wrongdoers.
Even a committed and proactive commissioner will find his or her hands tied by the same faulty law: this system simply cannot be made to work without major changes.
It’s impossible to grasp what happened here without understanding the context: the almost universal hostility that exists towards whistleblowers by employers, including government departments. The interests of those in power are nearly always threatened when allegations of wrongdoing surface – especially if these are true! This hostile attitude is evident in the way that employers invariably portray whistleblowers as irresponsible, untrustworthy, attention-seekers, mentally unbalanced or motivated by personal vendettas – although research consistently finds that they are the most loyal, the most diligent high-performers. These distortions are all part of a strategy designed to silence, crush, discredit and, above all, to punish truth-tellers for ‘disloyalty’.
This attitude is also evident in the extreme lengths that institutions will go to in order to crush and silence truth-tellers. When FAIR’s founder, Joanna Gualtieri, sued her bosses for harassment after she warned the department about massive waste and extravagance in its accommodations for diplomats abroad, government lawyers dragged out her case for 12 years, forcing her to answer 10,576 questions during pre-trial discoveries – only to settle in the end, virtually on the courthouse steps. After wasting millions of taxpayers dollars on this obscene abuse of legal process, the government finally gagged her: she apparently cannot discuss any aspect of her case or her allegations. And this is not an isolated example.
This institutional hostility is also evident in jurisdictions around the world, where laws drafted to protect honest employees have been systematically sabotaged by those in power: by gutting legislation so that it has no teeth; by starving enforcement agencies of resources; and by putting in charge people who can be relied on to protect the status quo. Many would consider Ouimet to be just such a choice.
So, although many ordinary Canadians may be shocked and puzzled by the failure of this system, informed observers and experts in the field are not surprised: given the background, this is pretty much what we expected to happen. Canadian politicians have not yet become serious about protecting whistleblowers, and will not do so until the public demands protection for honest conduct in the workplace.
What’s wrong with the law we have today? There are so many problems that it’s difficult to know where to start. Just three examples will have to suffice, although these only scratch the surface.
1) Most real-life cases can (or must) be refused on jurisdictional reasons
The whistleblower law allows (and in many cases requires) the public sector integrity commissioner (PSIC) to refuse to deal with a complaint that is being dealt with, has been dealt with, or could be dealt with by some other process.
For example, suppose that the whistleblower has already launched a grievance against apparent reprisals by bosses and finds that it is going badly. PSIC will refuse to deal with this person’s complaint because there is another process (the grievance) under way. Once the grievance is settled, PSIC will again refuse to deal with the complaint because it has already been dealt with by another process. Suppose that the bosses accused of wrongdoing were involved in settling the grievance? That doesn’t matter – because the grievance process provides a comprehensive remedy, according to legal precedents. What if the whistleblower didn’t launch a grievance? PSIC can still refuse to deal with the case on the grounds that it would be better dealt with by some other process – like a grievance.
It’s a true Catch-22 situation. Since the law allows (or even requires) PSIC to defer to any other jurisdiction, there’s virtually nothing left that it can or must deal with: it can turn everyone away.
This is bizarre, especially when you consider that grievances, internal departmental investigations and the like almost never work in whistleblower cases – because bosses can so easily manipulate these and turn them into reprisals. That’s supposedly the very reason why this law was created – so that there is somewhere safe for honest employees to go when all other official channels have failed.
2) The Commissioner cannot pursue investigations that lead into the private sector
It is noteworthy that the auditor general, after launching her investigations into PSIC under the whistleblower legislation (thus assuming the powers of the integrity commissioner) abandoned this approach within weeks and continued her investigation under the powers of the Auditor General Act. She did this mainly because the whistleblower law did not give her the authority to investigate any private sector involvement. Being blocked from the private sector would seriously impede her investigation even if the private sector participants had done nothing wrong but were merely witnesses.
Why would the private sector be excluded from any investigation where public resources are possibly being misused? Probably the majority of government whistleblowers who come to us allege scams that involve the private sector in some way: contracting fraud and manipulation; grants handed out to phony companies that do no real work; consultants and auditors hired to write phony reports exonerating wrongdoers… the possibilities are endless. If we reflect upon the major scandals that have become public in the past few decades – the tainted blood scandal, the gun registry overrun, the sponsorship scandal – every one has had significant private sector involvement.
In an era where public-private partnerships of all sorts are in vogue, when much of the work of government is being done through contractors, this is a gaping omission in the law.
3) The Tribunal (that never sat) will probably never protect anyone
The law does not give PSIC any power to protect whistleblowers directly: the commissioner can only investigate complaints of reprisal, and if these are founded, refer the case to a tribunal. This is a special-purpose administrative body, a kind of pseudo court that adjudicates complaints of reprisal by hearing evidence from both parties.
Out of the 55 complaints of reprisal submitted over three years, only a handful of were investigated and not a single one was referred to the Tribunal. So this body, with a small full time staff and an annual budget of $1.8 million sat idle, waiting, waiting… and no whistleblower even had the opportunity to plead for protection.
Unfortunately even if any cases had been referred to it, we expect the tribunal to be a kangaroo court, nearly always finding against the whistleblower – because of the way the law is written.
The most serious obstacle is that the law puts the onus on the whistleblower to prove that any adverse actions taken were reprisals for a disclosure of wrongdoing. In practice this is usually impossible for an employee to prove since bosses engaged in such harassment generally don’t admit to it, and proof is hard to obtain. However, without such proof the employee has no recourse, no possible remedy, and no defence against further retaliation.
The solution adopted in more progressive jurisdictions, is a reverse onus provision: once the employee has proven that there is a connection between the whistleblowing and the adverse action (e.g. a short time frame between the whistleblowing and a demotion) the burden shifts to the employer to prove that these actions were taken for good reasons other than retaliation. Even with this reverse onus, proving reprisal is not a slam dunk for the whistleblower – only about 20 percent prevail – but at least they have a chance.
There is also little pressure on this tribunal to perform: it can hold its hearings in secret, it can take as long as it likes, and it does not even have to file its decisions with the Federal Court. The only avenue of appeal is to a judicial review. No matter how questionable the Tribunal’s actions or decisions the whistleblower cannot gain access to the normal court system, with court reporters, rules of procedure and judges who can be impartial because their tenure is secure.
The seriousness of this problem can be seen by examining U.S.A. experience of a similar arrangement (a special purpose administrative body, no access or right of appeal to the courts, and no reverse onus provision): of the first 2,000 whistleblowers who submitted complaints of reprisal, only four prevailed.
As a final insult, the whistleblower is given no legal assistance to make their case before the tribunal – only $1,500 for pre-tribunal consultations (if the commissioner authorizes this). Considering that those accused of wrongdoing will certainly have their hefty legal bills paid by Treasury Board, it’s difficult to imagine a more uneven playing field.
These three examples address just a few of the problems build into this law: there are many others just as serious. The bottom line is that it creates a regime that is littered with deadly traps and loopholes, shrouded in impenetrable and unnecessary secrecy, and stacked against the whistleblower, so that few (if any) can ever prevail.
But perhaps the most serious failing lies in the basic concept: creating a complete quasi-legal system in a bubble with a monopoly over whistleblower cases. This system is hermetically sealed off from the outside world, from the proper legal system, from access to information, from the media. Rather than giving whistleblowers more choices and more control on their dangerous journey, it forces them into a secretive bureaucratic process that is little more than an elaborate trap with multiple jaws. Can it be fixed without starting over? That remains to be seen.
FAIR is in the process of re-writing our four-year old publication “What’s wrong with the PSDPA” to explain in more detail the full scope of the problems with this law. We are also working with other organizations such as Canadians for Accountability and the Democracy Watch-led nationwide Government Ethics Coalition, with the goal of arriving at a common position regarding what should be done to fix the problems when Parliament returns at the end of this month.
It’s time for politicians of all stripes to do the right thing, to scrap this sorry piece of legal window-dressing and give us a law that will truly protect honest employees, so that they can protect the public interest. How can any party claim to be serious about transparency and accountability as long as they deny this fundamental right to Canadian employees? The time to act is now.
David Hutton
Executive Director
FAIR (Federal Accountability Initiative for Reform)
Original article on Hill Times website (subscription required)
Related
A shortened version of this article was also published in the Epoch Times
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