Canada’s crackdown on government whistleblowers
TheStar.com – Opinion/Commentary – More and more government is trying to suppress and criminalize truth-telling in Canada.
Dec 20 2013. By: David Hutton
The House of Commons recently shocked many Canadians by demanding its employees sign a comprehensive, lifetime “gag order” with draconian sanctions for any breach. Following on the heels of the Senate scandal, this heavy-handed measure reeked of a coverup strategy and seemed to confirm that our political leaders are more concerned with concealing the truth than being transparent and accountable for their actions.
Although some MPs are now saying they will reconsider, this incident is not an aberration: it is part of a trend to suppress and criminalize truth-telling in Canada.
Regardless of the government’s rhetoric, Canadian whistleblowers are actually worse off today than they were 10 years ago. The laws and agencies that are supposed to protect them simply don’t work; and even Charter rights are being stripped away by deceptive legislation and perverse codes of conduct.
The Public Servants Disclosure Protection Act (PSDPA), the so-called “ironclad” whistleblower protection law created by the Conservative government in 2006, has been an expensive exercise in futility, costing the taxpayer more than $40 million to date with virtually nothing to show for it. Only six cases of wrongdoing have been found in more than six years of operation, and not a single whistleblower has obtained a remedy from the Tribunal that is supposed to compensate them for reprisals.
Both Integrity Commissioners appointed to protect whistleblowers under this Act have been problematic. The first, Christiane Ouimet, found zero cases of wrongdoing and zero cases of reprisal in three years, and then retired, disgraced by the damning findings of an investigation by the Auditor General. Her successor, Mario Dion, has done little better, exploiting weaknesses in the law to do as little as possible and to leave whistleblowers to their fate.
With this track record, Canada has become a laggard in whistleblower protection laws — decades behind other jurisdictions such as the U.S., Britain and Australia.
Successive governments have also made it easier to harass and to fire whistleblowers, who nearly always face calculated and determined reprisals and have no effective protection against harassment in the workplace.
Those who file grievances have little chance of success since the accused wrongdoers, usually senior to them, can manipulate or even control the grievance process. There is no recourse to a tribunal (as there would be, for example, in the case of a violation of the collective agreement) because harassment is not “actionable.” And the courts consider that a completed grievance is a “comprehensive remedy” — a patently absurd legal fiction — so there is no other legal recourse available.
In 2003 the Liberal government quietly eliminated the only remaining remedy by stripping public servants of the right to sue their bosses — in Section 236 of the Public Service Modernization Act. This was the government’s response to the highly-publicized case of Foreign Affairs whistleblower Joanna Gualtieri, who had successfully launched a lawsuit against her bosses for harassment.
But harassment is rarely enough for vindictive bosses seeking revenge: they want to see the whistleblower utterly crushed by being fired for cause. This discredits the individual and may render them forever unemployable in their chosen profession.
Hence it has become commonplace for whistleblowers — like EI investigator Sylvie Therrien and Justice Department lawyer Edgar Schmidt— to be immediately suspended without pay (in blatant violation of employment rules) while the department builds a case to dismiss them.
The government has facilitated this strategy by allowing departments to criminalize whistle-blowing in their codes of conduct — as the House of Commons just did. The RCMP, CIDA and the Library and Archives of Canada have all been in the news recently for the same reason.
The draft code of conduct for the RCMP prohibits “public statements that could reasonably be interpreted as having an adverse effect upon the morale, conduct, operation, or perception of the Force.” This seems to cover just about everything.
The bottom line is that in just 10 years Canada has gone from being merely unfriendly towards truth-tellers to becoming a dangerous wasteland for them, with every avenue for protection or redress effectively blocked.
As the executive director of the Federal Accountability Initiative for Reform (FAIR), I hear from more than 100 whistleblowers each year — honest and conscientious employees who are trying to protect the public interest. But increasingly these people are being hunted down, silenced and disposed of like criminals — while the alleged high-ranking wrongdoers flout the law with impunity and conceal their actions behind a curtain of secrecy.
The inevitable result is wasted tax dollars, and government incompetence that may put at risk our health, safety and the environment. Canadians deserve much better.
David Hutton is executive director of FAIR.
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