David Hutton is a senior fellow at the Centre for Free Expression at Toronto Metropolitan University, which operates a free, confidential helpline for whistleblowers.
The recent awarding of US$279-million to a whistleblower by the U.S. Securities and Exchange Commission is an outlier case. In the U.S., nearly all of the heavy lifting done by whistleblowers offers no reward other than the possibility of righting a wrong.
Sadly, in Canada, not even the possibility of righting a wrong exists. Ontario has a scheme like the SEC’s, awarding some employees in the securities industry for whistleblowing. But for nearly all Canadians there’s nothing except traps, pitfalls, and punishment waiting for those who do the right thing by speaking out about wrongdoing.
Our law for federal government whistleblowers, the Public Servants Disclosure Protection Act (PSDPA), has been in operation for 16 years at a total cost to the taxpayer of more than $100-million, yet incredibly, it has never protected a single whistleblower.
Since 2007, more than 1,500 public-servant whistleblowers have come forward with information about suspected wrongdoing, of whom 500 subsequently complained of reprisals. Only two of these managed even to complete the arduous legal process required to prove reprisals, and both were unsuccessful before the Public Servants Disclosure Protection Tribunal. Why? Because the PSDPA virtually guarantees that the whistleblower can never succeed. It helps cover up suspected wrongdoing because the evidence, by law, remains beyond the reach of Canada’s access to information legislation – forever. When whistleblowers then report reprisals, the process places them on a treadmill of rigged, bureaucratic procedures that will sap them of years of their time and exhaust them financially and emotionally, with no prospect of success. Our whistleblower law is a fully-realized, powerful weapon in constant use, but pointed in the wrong direction.
Renowned international experts have been openly critical of the PSDPA for years. In 2019, the legal director of the internationally respected whistleblower nonprofit Government Accountability Project, Tom Devine, told the CBC that Canada’s whistleblower law is akin to a “tissue paper shield.” Last year, an expert study of about 50 countries’ whistleblowing laws rated Canada’s the worst – tied with Lebanon for last place. We scored one point out of a possible 20, while many of our peers in the EU, as well as Australia, scored around 16. We are an international laughingstock.
It is now widely recognized that whistleblowers play an essential role in protecting the integrity of institutions and of democracies, and consequently, there is an international trend toward strong whistleblower protection laws – except in Canada.
This situation is under discussion now in Parliament, as the Standing Committee on Government Operations and Estimates (OGGO) debates a recently-introduced private member’s bill, C-290 (the Public Sector Integrity Act). The OGGO was previously asked to review the PSDPA in 2017, writing a unanimous report with sweeping recommendations for change – which the Liberal government completely ignored. This time, the committee (which I recently appeared in front of) has again heard excellent testimony from many whistleblowers describing horrific, illegal reprisals taken against them for reporting wrongdoing – actions one might expect of organized crime rather than government.
Despite this compelling testimony, the omens for change are not good. The Liberal response has been to treat this bill like an existential threat, repeatedly raising issues with the bill and creating procedural delays that seem intent on killing it. For example, on Monday the government presented 12 new proposed amendments to C-290 just 30 minutes before the review process was to start, causing delays and confusion – a very effective time-waster.
There have also been lengthy, sometimes surreal debates of certain provisions in the bill under the guise of attempting to “strengthen” it. Prime Minister Justin Trudeau’s parliamentary secretary, Greg Fergus, argued against an amendment that would extend protections to former public servants, claiming that such individuals “cannot be reprised against.” This, even though whistleblower and public-service retiree Luc Sabourin had just testified at a previous hearing that his pension was paused for four years as a reprisal. Fortunately, the amendment was carried forward by the committee chair’s vote.
In my experience, there are only two reasons why business and government leaders fear whistleblower protection: either they lack knowledge about the important anti-corruption role these individuals play, or they fear that their own practices would not stand up to scrutiny.
It’s very difficult to believe that, given the quality of testimony and expert advice that they have heard, the Liberals are still ignorant of the benefits of this internationally accepted, highly effective anti-corruption measure.
It is the government’s ethical standards that are on trial here, not Bill C-290. After years of government inaction, will the Liberals finally summon the integrity to support this important bill, with the amendments required to make it truly effective?