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Federal Whistleblower Law Must Be Expanded Amid COVID-19 Pandemic Spending, Experts Say

Public servants need to jump many hurdles to expose potential wrongdoing.
General view of the Centre Block on Parliament Hill in Ottawa, Ontario, Canada September 17, 2020. REUTERS/Blair Gable
Blair Gable / Reuters
General view of the Centre Block on Parliament Hill in Ottawa, Ontario, Canada September 17, 2020. REUTERS/Blair Gable

A nurse fired for speaking up about shocking conditions in an Ontario long-term care home.

A leaked Canadian Armed Forces report outlining abuse in some of that province’s long-term care residences that forced the federal government to respond and led to questions for the provincial government about its failing oversight system.

An employer who cheated his workers out their full wages by failing to abide by the emergency wage-subsidy program.

Nursing home managers allegedly stealing vaccines meant for the most vulnerable in their care.

These are instances of wrongdoing.

Wrongdoing that would be unknown without whistleblowers.

Whistleblowers who are not protected under Canada’s current laws.

* * *

The federal government is now being urged to expand the federal whistleblowing law — if it is serious about finding errors made while rushing out COVID-19 pandemic funding.

“Study after study has confirmed that insider tips — whistleblowing — are the most effective way of detecting misconduct in organizations, beating out audit, management review, law enforcement, everything,” Ian Bron, a former government whistleblower and a senior fellow at the Centre for Free Expression Whistleblowing Initiative told MPs last Monday while addressing the House of Commons’ standing committee on government operations.

Yet whistleblowers are still inadequately protected. Most private sector workers in Canada have no protection at all beyond common law, Bron said, adding that the laws that govern the public service are grossly inadequate.

The federal law, drafted after the fallout of the sponsorship scandal and enacted by the Conservative government in 2007, is weak.

Watch: Liberals striving for ‘balance’ on transparency, Trudeau says

Even though an all-party committee — dominated by Liberal MPs — urged changes to strengthen the law four years ago, Prime Minister Justin Trudeau’s government ignored their calls.

Before the Grits came to power in 2015, Trudeau was fond of declaring: “Sunshine is the best disinfectant.”

The Liberal leader told reporters gathered outside on Parliament Hill in 2013 that throughout his career and “throughout the years going forward, a big piece of the Liberal party and of my own personal brand is openness and accessibility.”

The Liberal government has not lived up to that expectation. Last year alone, the information commissioner made 12 findings that the government inappropriately stonewalled access to information — including five cases involving the prime minister’s own department. In one report, Commissioner Caroline Maynard took Public Safety Minister Bill Blair to task for ignoring most of her recommendations.

Much of the opposition parties’ — and the media’s — attention has been focused on the lack of transparency in government documents amid the COVID-19 crisis. In contracting, for example, where cabinet ministers have been unable — or unwilling — to tell Canadians basic information such as the names of some of the companies that have received millions in dollars for personal protective equipment, or to provide details on vaccine contracts, such as whether penalties are in place for suppliers that fail to honour contracts.

But last week, several experts, who joined forces last year to form the Canada COVID-19 Accountability Group, recommended another way that wrongdoing during the pandemic could be detected and corrected — encouraging whistleblowers to come forward.

“A lack of transparency allows mistakes or misconduct to slip through,” Bron told MPs. Government activity should ideally be transparent so problems can be spotted early. But when that fails, he said, institutions need to rely on whistleblowers.

“Whistleblowers are kind of a tripwire to pick up wrongdoing. They’re supposed to work when other systems fail.”

Ian Bron, a former government whistleblower and a senior fellow at the Centre for Free Expression Whistleblowing Initiative, testifies before a House of Commons committee on Feb. 1, 2021.
HuffPost/Parlvu screengrab
Ian Bron, a former government whistleblower and a senior fellow at the Centre for Free Expression Whistleblowing Initiative, testifies before a House of Commons committee on Feb. 1, 2021.

The problem, however, is that most whistleblowers are too afraid to speak up.

“Why would a person come forward who has a mortgage, has children and a wife? ... It could jeopardize their ability to send their children to university,” said Allan Cutler, another government whistleblower.

Cutler, who runs a consultancy firm and works for Anti-Corruption & Accountability Canada, told HuffPost Canada he knows of public servants who want to blow the whistle but are simply too afraid of losing their jobs.

“I have been handed documents literally proving the wrongdoing being done within government — as it happened,” Cutler said. “And I couldn’t do anything with it without exposing the person who gave it to me. So I’ve had to walk away and let that corruption go on inside the government.”

Bureaucrats are right to be concerned. And Cutler knows that first-hand. He is the former public works bureaucrat who was commended in Justice John Gomery’s 2005 report into the sponsorship scandal for being the sole person brave enough to air his concerns about wrongdoing. For that, Cutler paid a steep professional and financial cost. He was reassigned and retired from the public service early.

“Employers make reprisals because they can get away with it,” Bron said. “Even internal whistleblowing is punished, partly to send a signal to other workers and partly to head off external whistleblowing to a regulator or the public,” he said.

In a series of focus groups held across the country in 2015 with public servants and those in management positions, participants raised “fear of reprisals” as the top concern for not reporting wrongdoing. People feared being ostracized, getting blacklisted from assignments, losing their jobs, being reassigned or transferred, given work nobody wanted to do or too much work, getting harassed, receiving poor evaluations, being more heavily scrutinized, being unable to get references, or failing to get promotional opportunities.

Many whistleblowers who’ve flagged instances of what they believe to be wrongdoing have indeed paid a high price.

Sylvie Therrien is a former public servant who leaked information to a newspaper in 2013 showing “integrity investigators” were pressured to deny jobless Canadians access to employment insurance benefits in order to achieve savings quotas. Therrien was fired. She contested. Her case dragged on for six years before the court ruled against her, saying she’d breached her duty of loyalty to her employer. She later declared bankruptcy.

Joanna Gualtieri didn’t go to the media. The Global Affairs employee tried to blow the whistle on more than $1-billion in wasteful spending on lavish diplomatic properties all over the world to her supervisors. They didn’t want to hear it. To thank her for her efforts, they amended her reports, harassed her, and gave her a dead-end job. She eventually left the department on an unpaid leave and spent 13 years fighting the government in court.

While there are no equivalent statistics in Canada currently, a study from the United Kingdom charity Protect found that 20 per cent of employees who flagged concerns about, mostly, furlough fraud and breaches of COVID-19 safety rules, last fall were fired as a result.

Employers may not want to hear about wrongdoing but evidence from the United States suggests companies that encourage whistleblowing are actually more profitable.

Only half of employees “ever report serious wrongdoing,” Bron said in his testimony before MPs, and of that “less than one per cent of them will ever approach the media.”

Allan Cutler of Anti-Corruption & Accountability Canada testifies before a House committee on Feb. 1, 2021.
Allan Cutler of Anti-Corruption & Accountability Canada testifies before a House committee on Feb. 1, 2021.

Yet most of the cases of wrongdoing the public hears about are because of leaks to the media. The harassment allegations against former governor general Julie Payette that led to her resignation or the recent allegations involving former chief of the defence staff Jonathan Vance are just two examples.

These disclosures spurred the Trudeau government into action. But they are also, under the law, illegal. Whistleblowers who leak to journalists are protected from reprisals only in rare cases.

This applies across Canada, in the public and private spheres.

Coming forward is not something that public servants take lightly, said Isabelle Roy, the general counsel and chief labour relations services at the Professional Institute of the Public Service of Canada (PIPSC), the union representing more than 60,000 scientists and other professionals in the public service. The law is so complicated the union created a pocket-book to explain it to its members.

Every year, she said, a handful of members come forward with concerns about wrongdoing. “These are just the people who have the courage to ask,” she said. “Why put your livelihood on the line, right?”

After they’ve decided to come forward, she said, it’s quite shocking for some to “realize that, well, either the [public sector integrity] commissioner doesn’t have jurisdiction over this because it’s something that happened, for example, in the private sector, or we can’t protect you because you spoke to the wrong person about this.

“[This] would obviously come as a surprise to people who are just trying to do the right thing by speaking up.”

Law full of hurdles for public servants

The law is full of hurdles over which public servants must jump.

For example, even if a public servant has gone through the proper channel to disclose wrongdoing — and that that wrongdoing meets the narrow definition of what will be accepted as protected disclosure — if the whistleblower now ends up being the victim of reprisals, the law says it’s up to them to prove that their termination or refusal for promotions is tied to their disclosure. It is an arduous task.

Whistleblowers are also entirely reliant on the Public Service Integrity Commissioner (PSIC) to decide whether their case can be heard in front of the Public Servants Disclosure Protection Tribunal, which ultimately decides if a reprisal happened and what corrective action takes place.

“You don’t automatically get your day in court in front of that tribunal,” Roy said. “The commissioner’s the one to ultimately decide whether or not there’s enough here to be sent to the tribunal.”

PSIC has jurisdiction over approximately 375,000 public servants — federal bureaucrats, and those working in separate agencies and crown corporations, such as Rideau Hall and the CBC.

Since its inception in 2007, the commissioner’s office has received 392 reports from public servants alleging reprisals. But only two cases went to the tribunal. Twenty cases of reprisals were resolved through conciliation, and six were settled out of court.

Of the two that were heard by the tribunal, the judges in both cases ruled against the whistleblowers.

From what she’s heard, Roy said, public servants often give up along the way because they don’t have the assistance of their union or of some organization to help foot their legal bills. “It’s an incredibly difficult battle to fight,” she noted.

Prime Minister Justin Trudeau is seen as he speaks via videoconference during question period in the House of Commons on Jan. 25, 2021.
Justin Tang/CP
Prime Minister Justin Trudeau is seen as he speaks via videoconference during question period in the House of Commons on Jan. 25, 2021.

Some PIPSC members have gone to federal court to get the commissioner’s decision reviewed. The Federal Court or the Federal Court of Appeal has at least four times overturned decisions by the commissioner concerning reprisal investigations.

“People can’t typically do this on their own very easily,” said Roy, “particularly if they’re already suffering the consequences of having spoken up, and may be unemployed or severely restricted in their activities. So it’s just a really heavy burden for people to bear to see this through.”

What may be perhaps even more discouraging to whistleblowers is that the commissioner rarely finds instances of what he determines to be actual wrongdoing, or “founded wrongdoing” under the Public Servant Disclosure Protection Act for which employees are protected from reprisals.

(That threshold can be high. It includes, for example, disclosures relating to a breach of federal law, “gross mismanagement” in the public sector, misuse of public funds or assets, “a serious breach” of the code of conduct, or an act or omission that creates “a substantial and specific danger to the life, health or safety of person, or the environment.”)

Still the commissioner’s findings — or lack thereof — have raised eyebrows.

For example, in 2019-2020, PSIC received 142 new reports of wrongdoing. The office launched 11 investigations, and found only one case of wrongdoing. It wasn’t an unusual year.

In 2018-2019, 148 allegations of wrongdoing were received, 15 investigations were launched but the commissioner deemed zero cases to be “founded” wrongdoing.

A year earlier, 147 cases of alleged wrongdoing were reported, again 15 were investigated, and only three were found to be legitimate wrongdoing — cases involving managers who endangered employees’ health and harassed staff, and one who was verbally abusive and prone to outbursts of “violent rage.”

In its 13 years, the office of the Public Sector Integrity Commissioner has received 1,080 reports of wrongdoing but has found only 17 cases of wrongdoing.

‘I don’t recommend anybody going to the integrity commissioner’

In a submission to a Commons committee in 2017, the commissioner noted that at least four cases were referred to the RCMP because they involved possible criminal acts.

“I don’t recommend anybody going to the integrity commissioner anymore,” Cutler told HuffPost.

“You get a hundred complaints and maybe three or four have validity? There’s something really wrong with the system. And that’s the real problem.”

It hasn’t helped that two of PSIC’s former commissioners, Christiane Ouimet and Mario Dion — the current House of Commons’ ethics watchdog — were chastised by the auditor general for failing to do their jobs.

Ouimet was found to have failed to perform her functions properly and to have engaged in retaliatory actions against her staff (yes, the type of behaviour she was charged with investigating.) Dion was twice reprimanded for “gross mismanagement,” failure to ensure that staff understood their responsibilities and to ensure that files were investigated as expeditiously as possible. (One case dragged on for four years, and spent 15 months on hold when investigators at the PISC office did nothing to advance the case. In another instance, a public servant had to wait 18 months to learn his complaint about a reprisal was not going to be investigated.)

“Over the years, we’ve certainly seen some incompetence,” she added. “I’m not making any comment on the current commissioner [Joe Friday], but I do think that that position does have a lot of limitations imposed on them by the legislation.”

Back in 2017, the government operations committee recommended 25 changes to the whistleblowing law, such as broadening the definition of wrongdoing, allowing former public servants to come forward with disclosure, reversing the onus to the employer to demonstrate a reprisal hasn’t taken place, and 10 other changes to expand the role of the commissioner and ensure proper training in the public service.

The Treasury Board president at the time, Scott Brison, welcomed the report. He agreed with the committee that “improvements are required to the disclosure and protection regime under the Public Servants Disclosure Protection Act.” But Brison went on to talk about changes the government would make instead to internal procedures.

NDP MP Matthew Green told HuffPost he believes the committee should table the 2017 report again and press the government to act on their proposals.

His Conservative colleague Kelly McCauley agreed. If the government cares at all about the integrity of our institutions and protecting those that speak out about corruption and wrongdoing, “they will immediately implement the Committee’s recommendations to fix the gaps and enhance our whistleblower protections,” he said in a statement.

Liberal MP Francis Drouin, who sat on the 2017 Liberal-dominated committee that advocated sweeping changes, also thinks something needs to be done.

He believes the Trudeau government just “ran out of runway” in the House for new legislation.

“But,” he told HuffPost, “I agree. If we can put more transparency into our system and make those who want to come forward more comfortable, then, yeah, whether it’s through legislation or through other means.”

Enacting the committee’s recommendations won’t expand whistleblower protection to the private sector — protecting the many nurses and long-term care staff who’ve already risked their jobs by blowing the whistle — but Green suggests that at minimum MPs should act on the work that has already been done.

There are solid recommendations in there, he said, to ensure the law encourages public servants from coming forward rather than preventing them from doing so.

“There’s no real protections for whistleblowers,” he said.

This is the first part of a series on whistleblowing in Canada. Have a tip or a story to share? Contact us

CORRECTION: An earlier version of this story incorrectly stated only one case of reprisal had gone to the Public Servants Disclosure Protection Tribunal. In fact, two cases have been heard.

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