Why does Canada treat its whistleblowers so badly? Even though only it has been just a few years since the Sponsorship Scandal, which was exposed by Allan Cutler and another anonymous whistleblower, it’s a question that needs to be asked.
Why? Because, yet again, Canadian whistleblowers have been successfully persecuted as an example to deter any potential ethical dissenters.
On Monday, August 8, the Public Service Labour Relations Board (PSLRB) upheld the dismissal of Shiv Chopra and Margaret Haydon. Chopra, Haydon and a third Health Canada scientist (Gerald Lambert, who was reinstated) were fired in 2004 for insubordination after they defied industry pressure and management orders to approve drugs for livestock that they determined to be potentially harmful to human health. The axe fell after they testified at Senate Committee. The Senators who heard from them did nothing to stop the reprisal.
This abuse of power has been sustained and has undoubtedly cost millions of dollars. Exact figures are impossible to obtain, because such expenses are considered subject to solicitor-client privilege. (And if you, the real client, are wondering why you don’t have a right to know how much is being spent defending the indefensible, you’re in good company.)
PIPSC, the union representing Chopra, Haydon and Lambert called the decision “a bad day for whistleblowers”. It was that and more, but it certainly wasn’t the first attack on whistleblowers in the last ten years.
After all, with this action now spanning three governments, it’s clear that the orders must come with approval from the top – probably the Privy Council Office (PCO). It’s much the same with other attacks on whistleblowers.
A major attack on accountability was the passage of flawed legislation to protect federal whistleblowers in early 2006. The Public Servants Disclosure Protection Act (PDSPA) was drafted by senior bureaucrats and government lawyers during the Martin government with the intent not to protect whistleblowers but rather themselves. Although changed somewhat when passed under the Accountability Act, it remains excessively complicated and riddled with loopholes.
The fact that it’s a bad law was compounded by the appointment of a classic Ottawa bureaucrat, Christiane Ouimet. Ouimet spent three years as the Integrity Commissioner. With an annual budget of $6.5 million and more than 20 full-time staff, her office received 208 inquiries but did not uncover a single case of wrongdoing.
Even the process of making a complaint or asking for help was painful. Legalistic forms had to be filled and the level of proof required was ridiculous. Some complainants were actually threatened.
And not one whistleblower was protected.
Worse than that, the Auditor General reported in late 2010 that Ouimet had abused staff and had, in effect, obstructed justice by illegitimately dismissing cases. For this, she was rewarded with early retirement and a pension of more than $534,000. This again was approved by PCO despite the fact that she was a Parliamentary appointee and not an employee in the normal public service.
But the assault on accountability and whistleblowers hasn’t been limited to the PSDPA. In 2005, changes to the Public Service Labour Relations Act (PSLRA) came into force. One of the changes was to section 236. It took away the avenue of last resort for public servants – the right to sue their bosses.
This change, it was argued, was made because harassment and grievance procedures – backed up by the quasi-judicial PSLRB – provide a comprehensive means of redress. This ignores several important facts: that grievance processes are controlled by management, that the PSLRB is part of the bureaucracy and has its members appointed by the government, and that the PSLRB is adjudicated by semi-qualified individuals of uneven competency – indeed, they don’t even need to be lawyers. The decision reached on Monday proves that it cannot be trusted.
Section 236 was upheld by the Ontario Superior Court of Appeal in my own case in early 2010. The decision confirmed that I was probably a whistleblower, but said that the law was the law. Too bad for me – and all other whistleblowers or ethical dissenters in the Canadian government.
The lack of accountability for bureaucrats was underscored by revelations last October that Veterans Affairs officials had conspired against a disabled veteran who was a prominent critic of their work and policies. Retired Captain Sean Bruyea, who wasn’t even a public servant, was targeted using tactics that would have made a Soviet bureaucrat proud. He had his medical files widely circulated – even up to PCO – in an effort to discredit him. At one point there was an attempt to have him subjected to a week-long psychiatric assessment for which the results had been pre-determined.
When this was exposed, the government was forced to apologize and settle a lawsuit out of court. The worst punishment received by a bureaucrat for these actions was three days suspension – with pay.
These persecutions of dissenters on one hand and failure to act against the persecutors on the other exposes the system of rewards and punishments which is poisoning the public service and causing accumulating damage to the public interest. If that weren’t enough, harassment is so epidemic that the government stopped tracking it in 2008 to avoid further embarrassment. Mental health disability claims are skyrocketing.
The fact that this abusive, conformist and secretive government culture has now been backed up by laws and legal precedents makes it clear that it is unsafe for whistleblowers and dissenters to speak out. It will remain so until fundamental changes are made.
This is true not just for major misconduct such as the Sponsorship Scandal, but also for routine decisions which we would expect to be left in the hands of experts – such as the approval of drugs, pesticides, food additives and more.
Accordingly, Canadians for Accountability cannot advise anyone who observes misconduct or unethical behaviour in the federal government to use official channels. Those channels are a Trojan horse, designed not to help whistleblowers but to entrap them. If individuals feel they must speak out, the safest avenues are, for now, outside government. They must act carefully, seek legal advice take steps to protect themselves before acting.
This advice will no doubt upset government officials and trigger propagandistic public announcements assuring public servants of the contrary. But the proof, as they say, is in the pudding.
Original article on Hill Times website (subscription required)