Whistleblower law has done little to protect people who raise red flags
Public sector integrity commissioner Mario Dion is shown in Ottawa, on December 13, 2011. (Adrian Wyld / THE CANADIAN PRESS)
The Canadian Press
Published Sunday, November 17, 2013 11:50AM CST
OTTAWA -- Canada's whistleblower law, enacted by Prime Minister Stephen Harper's government in 2007, has done nothing to help people who raise red flags, critics say.
And the law, which is supposed to be re-examined every five years, is well past the due date for a review, the federal integrity commissioner has confirmed.
"Not only is there no report, there is not even a review on at the moment," Integrity Commissioner Mario Dion told The Canadian Press.
Allan Cutler, a former whistleblower during the federal sponsorship scandal, said the law has done nothing to help.
"Whistleblowers are just as bad off as they were before there was a bill," said Cutler, who is president of Canadians For Accountability, a non-profit organization for Canadian whistleblowers.
"We don't believe there is any improvement."
In fact, the former Conservative candidate estimates there have been negative consequences, including layoffs, in 85 per cent of the cases where civil servants have spoken out.
The Public Servants Disclosure Protection Act was enacted to encourage government employees to sound the alarm when they witnessed wrongdoing.
It provides for an independent five-year review of its application to ensure it is meeting its objectives and makes it mandatory for a report to be submitted. No review has been undertaken so far, more than 18 months after the deadline.
Treasury Board President Tony Clement is supposed to order the review.
"Why has it not been triggered? I do not know," said Dion.
A spokeswoman for Clement shed little further light on the matter.
"We are looking at our options for examining the law and we will act accordingly," said Heather Domereckyj.
An examination of the work of the integrity commissioner shows 10 cases out of 650 have been addressed in seven years. Three have been referred to the courts while the other seven have been the subject of reports.
Sylvie Therrien, who made headlines after she told a journalist about Employment Insurance quotas that had been imposed on bureaucrats, said the problems are merely the tip of the iceberg.
She said she tried to raise the matter internally but was warned off and eventually fired.
"I was told by superiors 'stop talking against the government'," she said in an interview.
"I know of some other civil servants who have gone all the way through the internal channel, all the way to the commissioner of integrity, who are without a job today because they complained."
Another government employee who requested anonymity and has suffered serious repercussions after alerting his superiors about a problem said the commissioner's office has a bad reputation among civil servants.
"My colleagues have no confidence in it," the whistleblower said of the process.
Critics of the whistleblower protection law in its current form cite numerous problems, including that the integrity commissioner has a lot of discretion to decide what gets investigated.
"We get to see that there are cases, that are very, very important, that they ought to be investigating," said David Hutton, president of the group FAIR, which helps whistleblowers. "They are simply finding excuses to send them away."
There are also a number of other constraints for filing complaints. For example, they must be filed within 60 days of witnessing the wrongful act and, if other action is taken, such as a grievance, the complaint is dismissed.
Also, the process is lengthy -- it typically takes three months before the integrity commissioner decides whether to investigate and the inquiry usually takes a year.
Dion acknowledged it takes courage to alert superiors and take a complaint to the commissioner.
"It's always a little dangerous and the difficult climate facing the public service in the last two or three years contributes to this fear," he said. "There are perhaps more fears than there were seven or eight years ago."
However, he said the situation is improving.
Michel Drapeau, a retired colonel in the military and a law professor, isn't so sure.
"From what I see, there are fewer complaints and an increase in the level of discipline."
Drapeau suggests that the integrity commissioner be completely independent, similar to the parliamentary budget officer. He believes the commissioner should also have the power to investigate, even if the complaints are anonymous.
However, for his idea to even be considered, the five-year review still needs to take place.
For Drapeau, the fact the review has not even been commissioned by the Treasury Board is the "cherry on top" of a lacklustre situation.