For Canadian public servants May 16 was an historic day: that’s when the tribunal that’s supposed to protect government whistleblowers was finally launched into action – triggered by a referral from the integrity commissioner’s office.
The Public Servants Disclosure Protection Tribunal is the only body in Canada that has the power to order a remedy for whistleblowers and to sanction the aggressors. It will now examine the allegations sent to it by the integrity commissioner, hear evidence from both sides, and hand down its decisions.
It’s shameful that this first referral comes four years after the position of Public Sector Integrity Commissioner was established. It’s also shameful that of the hundreds of whistleblowers who came forward, so far only one individual has any hope of obtaining redress, in spite of recent efforts to untangle the mess created by disgraced former commissioner Christiane Ouimet.
Hopefully there will be many more cases referred to the tribunal as OPSIC gets its act together under interim commissioner Mario Dion, and thoroughly re-examines the cases closed by Ouimet.
The big question now is: how will the tribunal perform? Regardless of the diligence and good intentions of its judges and staff, it is hamstrung by poor legislation. The Public Servants Disclosure Protection Act (PSDPA), which provided Ouimet with so many ways of fobbing off whistleblowers, also provides a flawed mandate for the tribunal. We see four serious problems:
1. Near impossible burden of proof
The onus is on the whistleblower to prove that the actions taken against him were in retaliation for disclosing wrongdoing. But this is usually impossible since abusive bosses invariably cover their tracks and invent plausible reasons for their actions. The burden of proof should be on the employer to show that adverse actions were not reprisals. Even with this ‘reverse onus’, proving reprisals is not a slam dunk for the whistleblower – only about 20% are successful.
2. Lack of legal representation
Those accused of retaliation will almost certainly be defended at the tribunal by a team of Justice Department lawyers with seemingly unlimited time and resources, all paid for by the taxpayer – but the law provides no legal assistance to the whistleblower. Without the services of an excellent lawyer the whistleblower has little chance and these legal proceedings can be very costly, sometimes running into hundreds of thousands of dollars. If the whistleblower is lucky he may have a union willing to come to his aid, but this is often not the case. This law does not create a level playing field!
3. No access to courts
There is limited transparency or accountability to ensure that the Tribunal does its job properly: it can hold its hearings in secret, take as long as it likes, and it need not even file its decisions with the Federal Court. The only avenue of appeal is judicial review, whereby the matter can be sent back to the tribunal for reconsideration if a mistake is judged to have been made. A judicial review cannot order a remedy for the whistleblower or sanction the aggressors.
No matter how questionable the Tribunal’s actions or decisions the whistleblower cannot gain access to the normal court system, with court reporters, standardized rules of procedure and judges whose impartiality is safeguarded by secure tenure.
The USA has tried a similar arrangement: a special purpose administrative body, with no access or right of appeal to the courts, and no ‘reverse onus’ provision for federal whistleblowers. This failed spectacularly: of the first 2,000 whistleblowers who submitted complaints of reprisal, only four prevailed. Why repeat the mistakes of others?
4. Inadequate penalties and remedies
In the event that a whistleblower does prevail, what sanctions should be handed out to the aggressor, and what remedies should be available to the whistleblower? The PSDPA falls short by treating reprisals like mere employment disputes of the type that grievances are designed to handle: it provides correspondingly weak penalties and remedies.
How should the law handle proven reprisals? In much the same way as when a criminal bludgeons half to death witnesses to his crime – since harassment can inflict equally devastating and debilitating wounds. There should be ‘make whole’ remedies available to the victim including compensation for permanent disabilities inflicted. And there should be personal liability on the part of the harasser: they should not be shielded by their department with their legal bills covered by the taxpayer.
Inadequate penalties are a huge problem because whistleblower laws work by deterrence.
If even a few wrongdoers are publicly sanctioned the word quickly goes out and many others are deterred.
This is largely why the integrity commissioner’s office has been such a disaster: wrongdoers are if anything emboldened because no-one has been sanctioned. The first (and so far the only) wrongdoer exposed through the use of the PSDPA was Christiane Ouimet herself, and the ‘punishment’ she received sets a terrible precedent.
Sent into comfortable retirement with a $500,000 ‘severance’ package (and a gag order to prevent her from spilling the beans) this Ouimet’s kid-glove treatment sends a clear message – that wrongdoers in high places will be shielded from any sanctions that might be imposed by Parliament. Every month that this absurd decision stands it becomes more difficult to believe that this government is sincere about protecting whistleblowers.
Now it’s the tribunal’s turn in the spotlight. With competent and diligent leadership it can perhaps do some good and justify its existence. But there are many ways that it can fail, and many ‘red flags’ that observers will be watching for.
Foot-dragging and delays
Delay is one of the bureaucracy’s tried and tested defence strategies, because delay always benefits the accused wrondoers and causes further harm to the whistleblower.
When Foreign Affairs whistleblower Joanna Gualtieri sued her bosses for harassment, government lawyers abused the legal process by tying up her case in procedural manoeuvres for twelve years, without it ever coming to trial (they settled virtually on the courthouse steps). When Dr. Shiv Chopra and his two Health Canada colleagues were simultaneously fired and grieved their dismissal to the PSLRB, government lawyers dragged out the hearings for six years. Another a year has passed since the final arguments were heard, yet still no decision has been handed down.
It would be wonderfully refreshing to see a Canadian court or tribunal recognize the massive imbalance of power and resources between the parties that often exists in a whistleblower case, and therefore handle it with some sense of urgency. The Tribunal’s website states that its performance standard for completing cases is 250 calendar days. It has had four years to get ready for this moment. Let’s see if it can meet its own standard for timeliness in this first case.
If the Tribunal chooses to meet in camera it stands to lose all credibility, regardless of the ultimate outcome of the process. Given the track record of this whistleblower-protection regime thus far, who could possibly trust that justice is being done behind closed doors?
It’s also hard to see any possible justification for secrecy. It is doubtful that there are national security issues at play here – employees of the armed forces and the intelligence agencies have no protection under this law – and protecting the government from embarrassment is definitely not a valid reason. This legislation was supposed to increase government transparency, not eliminate it.
Hostile or ill-informed appointees
The history of whistleblower laws around the world is replete with examples of ludicrous judicial decisions, often creating precedents that gut the legislation or even reverse the intent. It seems that those appointed to oversight bodies are often chosen because they can be relied upon – through instinct, ideology or personal loyalty – to protect the status quo.
Christiane Oumet seems a perfect example of such an appointment, but she is by no means unique. Her former counterpart in the USA, Scott Bloch, was accused of similar wrongdoing – arbitrarily closing files, harassing his staff, impeding investigations – and recently sentenced to serve time in jail. In January Michael Dudley, the acting chief of the U.N. division that investigates internal wrongdoing, came under investigation for almost identical misconduct.
We have no reason to believe that the appointees to our tribunal are anything other than competent, diligent, honourable and well-intentioned people. But given the inevitable mistrust engendered by the circumstances of Ouimet’s appointment and retirement, their words and actions will be scrutinized closely.
These judges need to demonstrate an understanding of the great courage that it takes to come forward, especially when the wrongdoers are powerful and well-connected. They need to recognize how devastating and life-changing reprisals can be, and to be prepared to study and learn about this phenomenon. They need to recognize that whenever there is a wrongdoer operating in a position of authority, there is always a parallel cover-up and a campaign to silence witnesses: it’s normal to encounter layer upon layer of deception – bold lies, bogus investigations, falsified documents. And the judges need to demonstrate that they will not simply accept at face value the word of a senior bureaucrat over that of a perhaps lowly truthteller because power holds sway. It’s the evidence that counts.
Soft landings for wrongdoers
Canadians were rightly offended by how Christiane Ouimet was protected from any accountability for her misconduct. The tribunal must not fall into the trap of handing out token sanctions.
The tribunal has been given a monopoly – there is no other agency in Canada with the power to protect whistleblowers from reprisals. With this mandate comes a heavy responsibility to show that it can do the job. But this may prove to be impossible due to the flaws inherent in the legislation.
The law needs to be strengthened but there are other, arguably better strategies available. For example the tribunal could be scrapped or at least truthtellers allowed to go directly to the courts – with substantial legal aid and the vital ‘reverse onus’ provision. Such an arrangement might cost the taxpayer much less to administer – and be more effective in deterring costly frauds against the public purse.
So there’s no compelling reason to keep the tribunal if it seems unable to do the job. The PSDPA must be reviewed by 2012 and organizations like FAIR, Canadians for Accountability and Democracy Watch expect to have a voice in the process. By then it should be should evident whether the tribunal deserves to survive.
David Hutton is the executive director of FAIR (Federal Accountability Initiative for Reform)
Original article on Hill Times website (subscription required)