Whistleblowing in Canada – progress or lip service?

Whistleblowing occurs when a person in an organization brings to the attention of someone in higher authority, within the organization or outside of it, or brings to the attention of the public, acts by the organization that are illegal, or contrary to the public interest. How can that be dangerous? Why should we even have to debate the need for protection?

The fact is, those who ‘blow the whistle’ in Canada are still not well protected, even though the logic of this idea is pretty much unchallengeable.

It’s fascinating that almost every opposition party supports the concept, and then when they form government the idea drops way down on the priority list - way, way down. Odd, that.

We have made some progress in the last couple of years, but perhaps it would be fair to say we have made more progress in getting the need for whistleblowers protection legislation recognized than we have in actually getting satisfactory legislation in place.

What are the recent developments?

New Brunswick and Saskatchewan have some protection in their labour standards laws, but these laws, always hard to enforce in non-union environments, only offer protection to those who bring forward violations of a law or regulation, which is too narrow to be fully effective.

The Saskatchewan law has recently been interpreted by the courts to require that the complaint be made to a lawful authority. Thus, even complaints to senior managers aren't protected.

Recently we have seen two creative judgments, in Alberta and the Federal Court, finding that the right to blow the whistle is protected under the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms.

While these are intriguing decisions, such a Charter-based right is somewhat problematic. Firstly, the Charter only covers the public sector. Secondly, a Charter-based right is not the same as a comprehensive articulation of the protections that should be offered to whistleblowers.

Charter rights are also costly to enforce and the process moves very slowly, and they are after the fact responses to reprisals.

Criminal Code

The Criminal Code has been amended to provide that it is a criminal offence for an employer to attempt to prevent whistleblowing, or to retaliate in any way against a whistleblower – but there are very obvious limits: firstly the whistleblowing has to be with respect to a violation of legislation, and there are lots of examples of activity that may not be an obvious breach of the law per se but is a serious breach of a duty or standard.

Secondly, the whistleblowing has to be to a person whose duty it is to enforce the law - i.e. it has to be a pretty serious matter, serious enough that the concerned employee will want to go to the police in the first place. The section appears to deal with securities laws, interestingly, but the protection does extend to all legal breaches.

Nova Scotia Regulations

About the only positive thing I can say about the regulations introduced in Nova Scotia in the fall of this year is that the idea of whistleblowing is addressed; the rules are seriously flawed.

Employees who wish to expose wrong-doing have to submit a written form, they have to go through internal channels first before the Ombudsman can investigate, they have to seek advice from the Conflict of Interest Commissioner before they can even begin, (and isn’t that going to open the floodgates of complaints) they have no right to go public, and they can face serious reprisal if their compliant is not upheld. Clearly the Nova Scotia government was more interested in appearing to deal with the need for whistleblowers protection than in actually providing it.

New Federal Legislation

Even on the second go around for the federal government, after their first try died on the order paper when the election was called, their new improved legislation regarding whistleblowing protection is seriously flawed.

The independent new office that was widely called for? The whistleblower can report wrongdoing to the head of the Public Service Commission. There are some technical arguments for this choice, but probably everyone in Ottawa knows that the Public Service Commission is not sufficiently independent to fill this role, certainly not by the perception of the public sector workforce, which is what counts.

The legislation requires that a whistleblower must first go through their supervisor, through internal channels, unless they have “reasonable grounds” for not doing so. How many public sector workers have legal backgrounds so they will be comfortable with the definition of reasonable grounds? The whole point of whistleblowing is that the kind of problems identified cannot be safely brought to the attention of the employer at any level – or at minimum that employees don’t feel safe in using internal channels.

If a whistleblower discloses wrongdoing through any other channels, he/she isn’t protected. The most important thing, according to the legislation, is not whether there was wrongdoing, but whether the right process was followed by the whistleblower.

Telling an MP precluded

Going to an MP, for example, would preclude the whistleblower from protection. Surely that is completely backward – the most important thing is that there may be wrongdoing that should be exposed – the process used to expose it is far less important than ending the problem being complained of.

The legislation applies to “gross mismanagement”, a “substantial and specific danger to life”, and a “serious breach of a code of conduct.” What will all those qualifiers do except intimidate people who are thinking of coming forward? If complaints are not serious they won’t be treated seriously – but they shouldn’t be discouraged in advance. Employees are being invited, instructed even, to hesitate before coming forward in case someone else doesn’t think their issue is important enough.

The legislation is much clearer on one point – there is swift and serious punishment for anyone who makes an “unimportant, frivolous or vexatious” compliant. It seems that punishment for invalid complaints has much more resonance with the drafters than a broad invitation to expose wrongdoing. The legislation is far from inviting – it’s intentionally off-putting.

Whistleblowing is often thought of as a public sector issue. It is a public sector issue, of course. Public sector workers are employed by government of the day, but they work for the people of the country or their province. They owe a higher duty to the public than to the government of the day. They are sometimes called ‘public servants’ but they are never called ‘politician’s servants’.

Private sector issue

That being said, whistleblowing is also a private sector issue.

Let me use a U.S. example to avoid libeling any one in Canada.

Haliburton, the company formerly run by U.S. Vice President Cheney, is a private company – with contracts for reconstruction in Iraq worth billions, paid for by the U.S. taxpayer. Are that company’s actions simply a private concern?

It would be rare to find a private company where the public had no interest in the environmental practices of the organization, or where the public had no legitimate interest in whether the company practiced or encouraged corruption.

There are hundreds of examples of public safety issues arising from private corporations. Think of the oil rigs, the tankers, the transport trucks, the manufacturing processes that the public has every right to be worried about.

If we were to consider a distinction between public and private sector whistleblowers rights, where would the dividing line be? “Public services” are rarely delivered exclusively by government. They are complex, mixed systems that combine a continually shifting mix of public and private funding and public, private not-for-profit and private for-profit delivery.

The ‘new and improved’ federal legislation ignores this reality.

Basic Issue Not Addressed

The basic problem has still not been addressed by the legislative or regulatory changes canvassed here - an employer has tremendous power over the lives of employees.

An employer can deny the right to an employee to continue to be employed. Very many employees are in effect one or two pay cheques away from the food bank. Maxed out on expenses, maxed out on credit, the loss of a job would be catastrophic.

And if employees are fired or quit they don’t even have the same access to unemployment insurance. Even if it isn’t the extreme sanction of dismissal, an employer can banish an employee to the corporate equivalent of Siberia, ensuring the worst assignments and making life very unpleasant.

There have been far too many cases across the country where even though an employee was legitimately raising a serious breach of acceptable standards – even a violation of the law – the employee ended up fired or disciplined.

The Myth of Abuse

One argument often trotted out is that legislation protecting the right to blow the whistle could be ‘abused’ by disgruntled employees. We see that in the new federal legislation.

This is the same argument advanced by employers when the right to refuse dangerous work was first introduced. This feared abuse seldom happened, and when these minor instances of ‘abuse’ were weighed against the benefit of a safer and healthier workplace, the concern was hardly an acceptable reason not to proceed.

After all, we have free speech, and that can be abused – and so we have ways to deal with the abuse of free speech, like hate laws and the laws regarding libel and slander.

Few rights are completely shielded from abuse. That doesn’t mean we deny the rights; it simply means that we build in reasonable protections against abuse.

If we responded similarly to possible abuse in other areas, we would, for example, never have another prosecution in Canada, because it is possible to have malicious prosecutions. Instead of taking the extreme step of banning all prosecutions, we instead have a way to resolve the few cases of clear abuse.

The reality is that whistleblowing challenges those with power in either the public or private sector. It allows people to confront the virtually unbridled power that would otherwise be enjoyed, and it is therefore resisted.

It remains the unchallengeable case that whistleblower protection would add to our collective integrity as a nation.

Miguel de Unamuno, a philosopher, wrote “Sometimes to remain silent is to lie.”

The lack of whistleblower protection in Canada means we are condoning silence, in fact condoning the silencing of employees by employers. We are allowing employees to be forced to lie by their silence.

It is time for the laws to allow us all to speak the truth. NUPGE

More information:
• Protection for whistleblowers remains poor in Canada

Web posted by NUPGE: 15 November 2004

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