David Hutton, Executive Director of FAIR, interviewed by Sally Pitt on CBC TV – April 8, 2010.
Sally Pitt: Opposition leader Olive Crane spoke to the media this morning about the Public Interest Disclosure Act, also referred to as whistleblower legislation. It is meant to protect people who work for the government and report wrongdoing.
Joining me now is David Hutton. He is with the charity organization that helped fine-tune PEI’s legislation. Thanks for coming in.
David Hutton: My pleasure.
SP: First of all, why is this type of legislation needed?
DH: Whistleblower legislation is the single most effective means of combating corruption, incompetence, mismanagement – in government or in corporations.
SP: PEI is known for its history of political patronage, where a lot of people might depend upon their local MLA or the government for work or for contracts. What kinds of problems does that pose with this legislation?
DH: In a small jurisdiction like this it is very common for relationships to be very important, and for patronage to occur as you mentioned. What this legislation will do is to empower employees who see actions that are questionable or wrongdoing, to speak out with some protection against reprisals. It’s virtually impossible to protect whistleblowers completely from reprisals, but this legislation gives them a fighting chance, so that it’s not a suicide mission to try to expose wrongdoing: you do have a fighting chance of surviving the experience.
SP: And briefly, there is a clause in here about no reprisals: what kinds of reprisals would that cover?
DH: Well the range of reprisals that are taken against whistleblowers, and that this has to try to prevent ranges from isolation, harassment, manufacturing a poor job performance record, right through to dismissing them. The range or reprisals taken against whistleblowers is really limited only by the imagination of the people that do this. Many whistleblowers suffer mental injury because of that, such as Post Traumatic Stress Disorder (PTSD). So the legislation aims to provide broad coverage so that virtually any kind of reprisal would be wrongdoing by the person orchestrating it.
SP: That must be difficult to gauge or to police, I guess, because a lot of reprisals are not necessarily overt: they may not be dismissal– they may be more subtle than that.
DH: That’s right. And that is one of the issues that the legislation deals with quite well, actually. It is virtually impossible for an employee to prove reprisal, because the employer has all of the information and a lot of it may not be overt, but if the employee can prove that there is a connection, a reasonable probability of a connection between the actions against them and their whistleblowing, then the onus switches onto the employer to prove that it was not a reprisal. That’s a very powerful part of the legislation and one that we are very glad to see was in there.
SP: Even with this legislation, you mentioned mental stress and so on. Why is it, even with this legislation, is it still difficult for whistleblowers to come forward?
DH: Well you are basically pitting yourself against the entire resources of a government department or a corporation, and you may already when you embark on this you probably don’t have a lot of money, you don’t have a lot of resources, so it is a tremendously unequal battle. So without strong legislation whistleblowers have no chance whatsoever – they are simply crushed and silenced. With the legislation they have a fighting chance. In the best jurisdictions around the world, whistleblowers will win their cases of reprisal about 20% of the time – so it is always going to be a very dangerous and risky thing to do, but good legislation gives them a fighting chance.
SP: Briefly, the federal government has had legislation for about two years now. How does this legislation compare to the federal legislation?
DH: It’s much better. In fact we are in the process of studying legislation across Canada at the provincial level now. We haven’t completed that, but the bill if it’s passed, this legislation, I believe, will be by far the strongest legislation in the country, and certainly far ahead of the federal legislation, which is very poor. We testified to Parliament when it was being debated and pointed out the flaws, and our predictions have been proven right. It’s really been a very severe disappointment.
SP: Well David Hutton, thanks for coming in today. David Hutton is with a charitable organization, the Federal Accountability Initiative for Reform or FAIR. Thank you for your input on our legislation.
DH: You are very welcome. Thank you.