Canada has fallen behind other democratic countries in not providing strong protection by law for whistleblowers who reveal government waste, mis- management or wrongdoing. The federal government in the United States began such protection as early as 1978. The American state governments and other Western democra- cies soon followed suit, including Australia, New Zealand and the United Kingdom. But not Canada. Instead, the fed- eral government created a weak executive office to which whistleblowers are afraid to complain.
Whistleblowers should have strong protection for two main reasons. If they detect wrongdoing and reveal it pub- licly, their accused superiors are almost sure to take vigorous retaliatory action against them. Second, if they don’t reveal the wrongdoing for fear of retaliation, it may never be revealed and the public interest will seriously suffer.
There is no doubt that the potential whistleblower’s fear of retaliation is well founded. Because those accused of wrongdoing are nearly always higher in an organization’s hierarchy, they can easily take retaliatory action against their whistleblowing inferiors. And because there is a ten- dency in any organization to protect its reputation by deny- ing any wrongdoing, it may close ranks and ignore or even support the retaliatory action. In other words, the whistle- blower is not on a level playing field when faced with the resources of a giant organization.
This was shown in dramatic form by a research study in the US of 161 whistleblowers who had gone public before the American law was strengthened. Its shocking revelation was that all of them experienced vengeful reprisals by their superiors. Most of them lost their jobs (62 percent), and the rest experienced many other forms of retaliation. The most serious were: harrassment or transfer (18 percent), responsi- bilities or salary reduced (13 percent), isolation, character assassination, or any combination of these. As a result, many had mental or family breakdowns.
So it is not surprising that most public servants refuse to risk their careers and mental health by becom- ing public whistleblowers. Much waste, mismanagement and wrongdo- ing goes undetected as a result. In the recent case of wrongdoing by former Privacy Commissioner Radwanski, it took the power of a committee of Parliament to reveal the wrongdoing. Not a single employee on his staff was willing to blow the whistle on him because we had no law guaranteeing them protection against retaliation.
Those who fear public disclosure are likely to argue that most whistleblowers are just troublemakers.
But the American study found this accusation to be quite untrue. Those studied were found to be overwhelmingly well educated, intensely committed to their organiza- tion’s goals, and scored high on a ”œsocial respon- sibility” scale. Nearly half of them held responsible managerial positions. They are careerists like the three women who blew the whistle on the FBI’s lack of preparedness for 9/11, and the accounting frauds at Enron and WorldCom, and were named Persons of the Year by Time magazine in 2002.
In Canada, despite the absence of a strong protective law, in recent years a number of whistleblowers have been willing to risk their careers by going public with revelations of wrongdoing. One can think of the whistleblowers in the armed services at the time of the Somalia enquiry, and there have been a number of notable cases later in the civilian departments, the most recent being the three scientists dismissed in the Department of Health. In nearly every case the whistleblowers lost their job or suffered some other form of retal- iation, or both. One can only imagine how many cases of waste, mismanage- ment and wrongdoing would have been remedied, and how many taxpayer dol- lars would have been saved, if potential whistleblowers were encouraged to come forward and had adequate legisla- tive protection against retaliation.
If the federal government had cre- ated a comprehensive ombudsman system for complaints against mal- administration, as the provinces have done, it would have had the usual power to protect the identity of com- plainers including whistleblowers. As a result, more whistleblowers would have been willing to complain, and cases of administrative wrongdoing, as in the Radwanski and sponsorship scandals, might have been nipped in the bud by the ombudsman. It is inter- esting that the Organization of American States has a model whistle- blower law that refers to the office to which the whistleblowers take their complaints as the Ombudsman Office.
In November 2001 the federal government appointed a public serv- ice integrity officer who was supposed to investigate whistleblowers’ allegations of wrongdoing. But because he was appointed by the government under a policy issued by the Treasury Board instead of a law passed by Parliament, his powers of protection are weak. He is not inde- pendent of the govern- ment and doesn’t have the power to make binding decisions or to publicize wrongdoing. As a result, his office has been criticized as feeble and toothless, based on a policy of internal rather than public disclosure. In his latest annual report he has admitted that potential whistleblowers’ fears of retaliation are so great that very few came forward. Most of the complaints he has received involve personal employment grievances rather than the misdeeds of senior bureaucrats.
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The American federal government began to recognize the need for a strong law by inserting special provi- sions in its Civil Service Reform Act of 1978. But they were not strong enough. So the Congress greatly strengthened the protections in a sep- arate Whistleblower Protection Act in 1989. The Act of 1978 had already set up a Merit Systems Protection Board with an ombudsman-like special counsel to investigate complaints from whistleblowers and, where mer- ited, to petition the Board, which could take action to prevent retalia- tions. Important among the strength- ened provisions in the 1989 Act is protection of the identity of whistle- blowers, and their transfer to other agencies if necessary. The Act also requires the special counsel, like an ombudsman, to submit an annual report to Congress on the number and nature of complaints and the results.
In the United Kingdom, a Public Interest Disclosure Act was passed in 1998. This Act, which applies to both the public and private sectors, provides full protection for employees who in good faith raise concerns about mal- practice, which includes crime, civil offences, miscarriage of justice, and danger to public health, safety or the environment. In Australia, whistle- blower protection was provided by the state of South Australia in l993, by New South Wales in 1994, and by the federal government in 1999. Since there is also a need to protect whistle- blowers in the private sector, New Zealand provided protection in both the public and private sectors in the year 2000.
Though the great majority of American states have by now passed whistleblower protection laws, some of which also cover the private sector, the only Canadian province providing comparable protection is New Brunswick, whose Employment Standards Act also applies to both the public and private sectors. In 1986, Ontario’s Law Reform Commission studied the problem and concluded that legislative protection was needed. It reviewed the American experience and recommended legislation based on the American act. In 1993 a bill based on the Commission’s proposals was passed by the Ontario legislature. But it was not proclaimed because of a change in government, and seems to be a dead letter.
At the federal level, a working group appointed in the last days of the Chrétien government recommended that a new obudsman-like office should be created by law. In the wake of the recent Radwanski and sponsorship scan- dals, it is now widely agreed that more whistleblowers would have come for- ward, and sooner, had there been a law to protect them. As a result, on March 23 the then president of the Privy Council, Denis Coderre, who was responsible for ethics in the public serv- ice, introduced a bill based partly on the recommendations of the working group.
Unfortunately, however, the bill was not strong enough to encourage whistleblowers to come forward with allegations. As the current integrity officer has said of the bill, ”œIt does not respond to the public servants’ cyni- cism and lack of confidence, and I think it might end up feeding both and, to me, that’s a tragedy.” The bill’s proposed integrity commissioner would not be seen as independent of the government and administration because he was to report through a minister, rather than directly to Parliament as do the auditor general, the chief electoral officer, and the lan- guage, information and privacy com- missioners. Also, the proposed commissioner would have no more investigatory and enforcememt powers than the current integrity officer, who has only the power to recommend. The commissioner wouldn’t be able to fol- low investigations into ministers’ offices and wouldn’t get access to cabi- net documents. Nor were private citi- zens given the right to complain to the integrity commissioner. If Canada had a federal ombudsman system like the ones in Australia and Austria, both cit- izens and whistleblowers could be given the right to complain about wrongdoing to the ombudsman, who would have the power to inves- tigate and publicize with- out identifying the complainant.
In sum, the bill’s provisions to protect whistleblowers were inadequate. Their anonymity was not guaranteed, and the bill provided no fines or sanctions against employers who retaliated, no financial or other compensation for blatant retaliation, and no rewards for whistleblowers who save taxpayer money, as laws elsewhere have done.
Former Privy Council President Coderre claimed that the bill struck a balance between encouraging public servants to report wrongdoing and protecting against disgruntled employees with an axe to grind. This reveals that he was not clear on the concept. He picked the wrong bal- ance. Protection against disgruntled employees is a minor problem. The real problem is the protection of whistleblowers. The law must strike a balance between the vast power of a blundering bureaucracy and the weakness of lowly potential whistle- blowers, by providing enough protec- tion and incentive for them to be willing to risk the wrath of superiors.
When Prime Minister Martin prorogued Parliament and called the election on June 28, the whistleblow- ing bill died along with all other pending business. Now that the Liberals have been returned with a minority, let us hope that one of the opposition par- ties, in exchange for its support, will be able to persuade his government to introduce an entirely new bill with a clearer focus on protecting whistleblowers. If much the same bill is reintroduced and passed into law, whistleblowers will still be afraid to stick their necks out, and many cases of waste, mismanagement and wrongdoing will never see the light of day.
