This is the story of a quest for effective whistleblower protection legislation that has so far lasted more than fifteen years.
1990's: Broken Promises
In the 1993 Federal election, the Progressive Conservative party suffered a stunning defeat, and a Liberal government came to power under Jean Chrétien with a mandate to improve the transparency and accountability of government. One of the promises made by Chrétien during the 1993 campaign was to introduce whistleblower legislation. Ten years later, in spite of a series of scandals that further demonstrated the need for such legislation, this promise still had not been kept.
2000's: Foot-Dragging And A False Start
In October 2002 a private members whistleblower protection bill written by FAIR, Bill C-201, was introduced by Mr. Gurmant Grewal. This bill was killed by the Liberal Government, which argued that whistleblower protection was 'not necessary'. Only when the Gomery Inquiry publicized damning details of one particularly embarrassing scandal did the government act, and then in a manner that seemed defensive rather than sincerely aimed at 'cleaning up' government.
The second attempt at whistleblowing legislation was in March 2004, when the Liberal goverment introduced Bill C-25 in response to the sponsorship scandal. This bill was widely criticized as being inadequate, and ultimately died on the order paper when the 2004 election was called.
Its successor, Bill C-11, was rushed through the Senate in December 2005, in the last hours before Parliament went into recess for the election. This was in spite of overwhelming and outspoken opposition to the bill by whistleblowers, who viewed it as a tool for covering up rather than exposing corruption.
Bill C-11 And Its Shortcomings
Bill C-11, entitled the "Public Servants Disclosure Protection Act" (PSDPA) was approved by the Senate in December 2005. This sets up an internal regime for reporting of wrongdoing, but does nothing to protect whistleblowers and little to ensure that their allegations are investigated.
In fact legal experts who have studied this Bill, such as whistleblower Joanna Gualtieri, assert that it will have the opposite effect: it will silence whistleblowers, protect alleged wrongdoers, and prevent the public from learning about scandals. Allan Cutler, whose allegations eventually led to the Gomery Inquiry, has stated that the provisions of Bill C-11 would have effectively silenced him and prevented the truth from emerging.
Some of the specific criticisms levelled against Bill C-11 are:
- The bill does not allow for public ruling of cases: so the public may never learn about the allegations, nor the outcome of investigations
- The bill requires whistleblowers first to report their allegations to their direct superior: yet this person may be the wrongdoer -- or an accessory to the wrongdoing
- The bill only covers public servants: yet government employs private contractors extensively, and these often become tools for wrongdoing involving public funds
- the bill does not provide for financial protection for the complainant e.g. to cover the costs of legal representation: yet the accused wrongdoers typically have the entire financial and legal resources of their organization at their disposal
- The identity of any wrongdoer will be kept hidden. This is another example of protecting the alleged wrongdoer rather than the whistleblower. Yet is is the whistleblower who is typically subjected to vicious retaliation by those in power.
- There are no provisions for protection of the truth-teller, nor any disciplinary measures against those responsible for reprisals.
Bill C-11 was aptly described by one MP as "...an act, not to protect whistleblowers, but to protect ministers FROM whistleblowers." It was also condemned as 'fatally flawed' by U.S. whistleblowing expert Louis Clark, who was invited to Canada to testify to Parliament.This first version of the PSDPA never came into force, as another election campaign intervened.
2006: New Government, New Promises
Legislative Changes Promised by Conservatives
During the 2006 election, the Conservative Party campaigned successfully on a platform of government reform. Their election campaign platform Stand Up For Canada set out five specific promises regarding whistleblower legislation, to improve the flawed PSDPA. The lead Conservative on this file, Pierre Poilievre, courted whistleblowers, involved them in his election campaign, and reassured them regarding the sincerity of these promises.
A dramatic about-face
However, after taking office the government's attitude seemed to change dramatically:
- Although the 'new and improved' PSDPA (introduced as part of the Federal Accountability Act) did indeed include provisions that were claimed to protect truth-tellers, on close examination these were so flawed as to be useless -- they seemed to be mere 'window dressing'.
- Numerous serious loopholes were highlighted during the hearings of House and Senate committees -- and well-designed amendments were drafted to correct these -- but the government rejected every single substantive amendment, claiming that these were attempts to slow the passage of their Accountability Act and to 'gut' the new legislation.
- The government turned its back on the whistleblowers that it had used to validate its election promises, notably Joanna Gualtieri, whose landmark case against her Foreign Affairs bosses for harassment reached its 10th anniversary under the Conservatives. Government lawyers were found to be delaying her case and running up her costs by abusing the legal process, yet still refused to settle the case or bring it to trial.
- Although the provisions of the PSDPA are not retroactive, no effort was made to address the plight of numerous other whistleblowers whose cases pre-date the current legislation, such as the 'Health Canada three' -- Shiv Chopra, Margaret Hayden and Gerard Lambert.
- Retaliation against truth-tellers has continued unabated under the Conservatives, in cases such as that of Oil Patch whistleblower Dr. John O'Connor and marine security whistleblower Ian Bron.
- The new whistleblower regime created by the PSDPA has been shown to be completely ineffective. In June 2008 the new Public Sector Integrity Commissioner released her first annual report (see commentary). This revealed that, during her first year of operation, with 21staff and a budget of $6.5 million, her office has been unable to find a single case of wrongdoing in the entire federal public service. There was no government response to her report.
Nineteen years after the first promises by politicians, Canada still does not have effective laws to protect truth-tellers and to enable wrongdoing in the public service to be exposed.
However, acheving this goal was never going to be easy, and significant progress has been made. A public debate has begun; citizens know that wrongdoing is widespread; public attitudes towards truth-tellers have changed; and politicians of all stripes have repeatedly promised to fix the problem -- and then reneged. It is becoming more and more difficult for political leaders to defend the current state of affairs, and Stephen Harper's government will be especially vulnerable on this issue during the next election.
David Hutton, FAIR's Executive Director summarises the situation: "Successive governments are being dragged kicking and screaming towards a goal that horrifies many in the establishment -- strong laws that make it difficult to cover-up incompetence, deceit and criminality, and which protect honest public servants who are willing to speak out."