It’s Time Parliament Delivered ‘Ironclad’ Whistleblower Protection

By David Hutton, Allan Cutler, and Duff Conacher-THE HILL TIMES-November 1, 2010.

The following is letter sent to Prime Minister Stephen Harper, Liberal Leader Michael Ignatieff, NDP Leader Jack Layton, and Bloc Québécois Leader Gilles Duceppe last week.

It is ironic that, even while we were preparing this letter to you, calling for (among other things) the replacement of the public sector integrity commissioner, we learned of Christiane Ouimet’s sudden resignation. It is shameful that it has taken a mass exodus of her staff, a formal complaint to the auditor general, and national media attention to bring this about, when concerned groups like ours have been calling for her replacement for more than a year.

Let us try to explain the magnitude of the failure of the whistleblower protection system that she presided over, and the magnitude of the changes required to rehabilitate it.

While the commissioner was tabling her third annual report, the nation was learning of the largest breach of the Privacy Act in Canadian history. More than 850 federal government employees trafficked in the confidential medical and financial information of a disabled veteran, Sean Bruyea, apparently in an attempt to destroy the credibility of this advocate for disabled veterans.

Privacy Commissioner Jennifer Stoddart was so disturbed by VAC’s breaches of the law that she launched a systemic review of the department—and VAC’s sinister tactics have been compared to those of a totalitarian regime.

Yet when Bruyea presented this situation to the integrity commissioner more than a year ago, she ruled that no wrongdoing had occurred—without interviewing him, seeing his documentation or conducting any investigation. She ruled that there was no evidence of wrongdoing and besides, it was ‘not in the public interest’ for her to investigate.

This astonishing ruling helps explain why her office has achieved no results whatsoever: in the past three years she uncovered no wrongdoing by any of the more than 400,000 public servants within her jurisdiction. It also raises serious questions about how many others (of the 170 whistleblowers who bravely made disclosures) were turned away based on similar fatuous reasons.

However the failure of the current whistleblower protection system is not attributable simply to the commissioner’s actions: the legislation itself is deeply flawed. Since 1993 all parties have proclaimed their support for whistleblower protection, yet seventeen years later we still do not have a law that could work – we’re not even close.

On April 11, 2006, Prime Minister Stephen Harper told Parliament that his government had just introduced “the most sweeping reforms in the history of this Parliament to establish accountability and end corruption.” He also promised that the new legislation would provide “ironclad protection” for whistleblowers. Yet since then, numerous cases of government wrongdoing and grievous reprisals against Canadian whistleblowers—like Sean Bruyea—have been made public. These show that the promised “ironclad protection” has tragically failed.

The system which should protect responsible and honest public servants, striving to make our government efficient and accountable, is fundamentally broken. Not only has the commissioner’s office failed to uncover any wrongdoing: it has protected not a single whistleblower from reprisal. Of the 58 people who approached her office with complaints of reprisal, not one has even been referred to the tribunal created to judge these cases. And the law is written in a way that ensures that this tribunal—if it ever sits—will be a kangaroo court, nearly always finding against the whistleblower.

The dismal performance of this legislation is not a surprise: in testimony to Parliament in 2006, government accountability organizations predicted that it would prove useless, even before it was passed into law. Witnesses testified that the legislation is riddled with loopholes and stacked against the whistleblower.

Canada’s belated first attempt to protect whistleblowers has been badly botched. It is time now for Parliament to acknowledge that the system is not working and to take vigorous corrective action. Here are some of the steps that we view as essential.

Appointment of a competent and qualified commissioner, using a public, merit-based process

We call upon Parliament to appoint a new commissioner with different qualifications and above all a very different attitude. The next commissioner should ideally come from outside the public service so that they represent voters’ concerns, instead of protecting senior public servants.

The new incumbent must also be capable of winning back the trust of government employees who may come forward as whistleblowers: this trust has been severely eroded over the past three years. And the new incumbent must be a competent leader, who can rebuild an agency gutted by a mass exodus of staff.

In order to win the trust of public servants (and the confidence of the public) the next commissioner must be seen to be qualified and independent, and not a lapdog chosen through a secretive backroom process. It is essential that a fully public, merit-based search process be used, conducted by an organization independent of Cabinet. This body should advertise the job, interview applicants and create a short list. The Cabinet-selected nominee must be called before a Parliamentary committee and subjected to the committee’s scrutiny—in public—before Parliament approves the appointment.

An accelerated five-year review, to initiate major changes to the law

The required five-year review must be brought forward and conducted in a manner that will ensure properly designed legislation. This will involve major surgery to the current law, not just tinkering at the edges.

The review must involve Canadian whistleblower advocacy organizations as well as internationally-recognized experts on whistleblower legislation. It must lead to a law that embodies internationally recognized best practices. And it must give the commissioner a much stronger and more clearly-defined mandate.

Urgent relief for the 170 whistleblowers whose cases may have been mishandled

We also call upon Parliament to ensure that those who submitted 170 disclosures of wrongdoing and 58 complaints of reprisal over the past three years are not forgotten. Very few of these cases were even investigated and those investigations must now be viewed with deep suspicion. Behind these numbers lie countless human tragedies—employees whose lives are now in ruins because they refused to go along with misconduct and illegality. These courageous people have been betrayed by our political leaders. It is not clear how this tragedy can be remedied in a timely manner, if at all.

At a minimum, we call for an independent review of all OPSIC case files, with a view to reinstating those with merit, and a public report on the findings of this review. We also call for disciplinary action against any public servant who is found to have mishandled cases.

Three years have passed and millions wasted with no results and no contribution to improved government transparency and accountability. We urge Parliament to do the right thing now by taking steps to deliver whistleblower protection that truly is “ironclad.”

David Hutton is executive director of the Federal Accountability Initiative for Reform. Allan Cutler is president of the Canadians for Accountability. Duff Conacher is chairperson of the Government Ethics Coalition.

The Hill Times

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