whats wrong with the psdpa

What’s Wrong with Canada’s Federal Whistleblower Legislation An analysis of the Public Servants Disclosure Protection Act (PSDPA) Published by FAIR: The Federal Accountability Initiative for Reform

About FAIR

FAIR ( Federal Accountability Initiative for Reform) promotes integrity and accountability within government by empowering employees to speak out without fear of reprisal when they encounter wrongdoing. Our aim is to support legislation and management practices that will provide effective protection for whistleblowers and hence occupational free speech in the workplace. FAIR is a registered Canadian charity, run by volunteers and supported by individual contributions. FAIR does not solicit or accept funding from governments or corporations. 82 Strathcona Ave, Ottawa Ontario, K1S 1X6 Phone: (613) 567-1511 Web site: fairwhistleblower.ca

Contents Introduction.............................................................................................................................. 1 Executive Summary................................................................................................................. 2 A Word To Truthtellers – Your Predicament .......................................................................... 4 Part 1: Key Problems ............................................................................................................... 5

1) The scope of the law is very narrow................................................................................ 5 For members of the Armed Forces, CSIS or the RCMP, the protection from reprisals is either limited or non-existent ........................................................................................... 5 Government misconduct involving the private sector cannot be investigated properly.. 6 The law does not address private sector misconduct at all .............................................. 6

2) The range of avenues (for seeking investigation and redress) has been restricted rather than expanded ...................................................................................................................... 7

All means of access to our normal courts are blocked..................................................... 7 There is little protection against bullying and harassment – for any employee............... 7 Going public or disclosing to the media is strictly prohibited in most circumstances .... 8

3) The coverage of wrongdoing excludes most real-life situations ..................................... 9 Restrictive definition of wrongdoing ............................................................................... 9 Jurisdictional reasons for refusal to deal with disclosures............................................. 10 Other vague and subjective reasons for refusal to deal with disclosures....................... 10

4) The provisions for investigations and corrective action are weak................................. 10 The Commissioner is restricted to a reactive, fragmented approach ............................. 11 There is no reliable mechanism to correct wrongdoing or discipline wrongdoers ........ 11

5) Most complaints of reprisal are likely to be rejected..................................................... 12 Jurisdictional reasons to reject a complaint of reprisal.................................................. 12 Short time limit to file a complaint ................................................................................ 12 Definitional reasons for rejection of a complaint .......................................................... 13 The Commissioner need not refer any case to the tribunal............................................ 13 Non-government whistleblowers effectively have no protection .................................. 13

6) The tribunal is unlikely to protect anyone ..................................................................... 14 Near-impossible burden of proof ................................................................................... 14 Lack of legal assistance ................................................................................................. 14 No access to courts......................................................................................................... 15 Inadequate penalties and remedies................................................................................. 15

7) The entire process is shrouded in impenetrable secrecy................................................ 16 Access to Information .................................................................................................... 16 Misclassification of documents...................................................................................... 16 Secret hearings ............................................................................................................... 16 Decisions need not be filed with federal Court.............................................................. 16 Gag orders...................................................................................................................... 17

8) The legal strategy is perverse and ill-conceived............................................................ 17 The law is unwieldy, complex and costly...................................................................... 17

OPSIC’s Track Record .......................................................................................................... 19 Disclosures of wrongdoing ................................................................................................ 19 Complaints of reprisal........................................................................................................ 20

Part 2: Next Steps – Developing Solutions............................................................................ 23 Other Sources of Information ............................................................................................ 24

February 24, 2011 Page 1

Introduction

This document represents the first step in a public process designed to build consensus around how to fix Canada’s broken whistleblower protection legislation, the Public Servants Disclosure Protection Act (PSDPA). Successive governments have done such a poor job on this file – ignoring expert advice and blundering as a result – that we cannot leave this task entirely in their hands. It’s essential that this time the best available expertise be brought to bear. Fortunately the world’s leading experts in this field mostly work for NGOs that are willing to provide their advice for free: a valuable resource that we intend to draw upon. Our focus in this first document is on what’s wrong with the current system, to ensure that the many serious problems are properly understood. The next step is to agree on and articulate practical solutions. Our view is that this system is so badly broken that some major changes are required to fix it: it cannot be put right by tinkering at the edges. Some of the solutions are relatively simple and obvious, and have already been suggested by FAIR and by organizations such as the Government Ethics Coalitioni. A set of fifteen well-designed amendments already exists, which were drafted by the Senate in 2006, after examining the legislation and correctly identifying many of the problems. (Unfortunately the government rejected all of these amendments.) However, some of the solutions are not obvious and require some kind of strategic decision or radical departure from the current framework. Here is one example:

Coverage of the private sector

A system that protects government but not private sector employees is like a bicycle with one square wheel. For example, how can our food supply ever be safe if the government inspectors (who only visit occasionally) are protected from reprisals for reporting problems – but plant inspectors and line employees who work there all the time are not? The UK enacted whistleblower protection for all employees more than a decade ago. This has been highly successful – but it was built upon a strong existing system for protecting the rights of all employees, regardless of where they work. However no such system exists in Canada to provide a starting point. In addition, corporations have vigorously opposed efforts to extend whistleblower protection to their employees. Given the considerable political clout of corporations in Canada, this lobby could block attempted reforms, possibly resulting in no reforms at all. This is what happened in the 1980’s to an early legislative initiative by the Government Accountability Project in the USA.

This is why we believe that it’s important to engage in a thoughtful and well-informed discussion about how to fix the current system, taking into account what’s permissible in our legal system, what’s practical to implement, and what can be successfully navigated through our political system. Future versions of this document will expand upon these issues and possible solutions.

What’s Wrong With Canada’s Federal Whistleblower Legislation


Executive Summary

During the passage of the PSDPA in 2006, the Government claimed that it would provide ‘ironclad’ protection for whistleblowers, and that it is the “Mount Everest” of whistleblower protection around the world. The reality has been very different. When FAIR testified to Parliament we predicted that the legislation would fail, but we could not have imagined how badly. A combination of flawed legislation and improper administration created a system that in three years uncovered not a single finding of wrongdoing and protected not a single whistleblower from reprisals. The Commissioner appointed to protect government whistleblowers resigned in disgrace following a report by the Auditor General condemning her behaviour. The credibility of the entire system is currently in tatters: it needs a complete overhaul. We first published this document in 2007, based on analysis of the legislation before it came into force. At that time we warned public servants of the pitfalls and urged them to be cautious in using this new regime. After seeing the law applied in practice we have identified many more problems, and the behaviour of the former Commissioner has dramatically illustrated how faulty legislation facilitates maladministration. Our advice to whistleblowers remains much the same: do not use this system without first understanding fully how it works and the potential pitfalls. And pay special attention to the track record of the responsible agency – the Office of the Public Sector Integrity Commissioner (OPSIC). Will our message change with the appointment of a new Commissioner? Not likely: major changes in the law are required before anyone could trust this system to work effectively. The basic approach of the Act – creating a complete new quasi-judicial process just for whistleblowers – is misguided and suspect, creating a secretive, unaccountable regime, hermetically sealed off from our courts and from the media. Experience has shown that watchdog agencies constituted like this are invariably protective of the establishment and indifferent or even hostile to whistleblowers. This strategy is costly and wasteful, creating two new agencies that have spent millions and achieved nothing useful. Not only has this resulted in the waste of significant public monies, but it is a missed opportunity to adopt methods that work properly and are cost-effective. The text of the law is a bloated, unwieldy mess. It creates a labyrinth of complex provisions, full of ambiguities, exceptions and repetition, which almost no-one can claim to understand fully. It stands in stark contrast to the brevity, simplicity and clarity that we find in whistleblower legislation that has proven to be effective. As we examine the law, section by section, we find that virtually every feature is flawed. It ignores best practice, decades of experience in other jurisdictions, and the advice of internationally-renowned experts who were called to Ottawa to give testimony. From the outset we have expressed serious concerns about the way in which the law has



been administered by the Public Sector Integrity Commissioner, questioning her effectiveness in 2008 and calling for her to be replaced in 2009. The Auditor General’s recent report, exposing egregious conduct by the Commissioner, confirms some of our concerns but does not address others. Even if the Commissioner had not been an abusive boss, had not engaged in reprisals against some of her staff, and had not rejected cases without proper due process – in other words, even if she had acted entirely properly – the current law would still have allowed her to pursue a largely bogus “prevention” strategy to the virtual exclusion of investigations, allowing the investigative capacity of her office to be gutted, while building up a substantial cadre of lawyers who were likely pressured to defend the wrongdoers rather than the whistleblowers. Nothing in the law compels any future Commissioner to adopt a different strategy, and in fact the law as it stands ensures that most cases will be rejected on technicalities, that few cases will ever be investigated, and that few whistleblowers will ever prevail in cases of reprisal. Further, the law provides no credible mechanism for ensuring that wrongdoers – including those in high places – are appropriately sanctioned. Experience has shown that merely reporting wrongdoing to Parliament does not do the job. Properly designed whistleblower protection protects the public interest by providing a powerful deterrent effect – potential wrongdoers see the risks and think twice. Without a robust and dependable means of administering sanctions there is no deterrent effect. The bottom line is that this regime is not working – in fact it has caused great harm. It is not the safe haven that was promised to honest employees. Rather than deterring wrongdoers, it has surely emboldened them, secure in the knowledge that witnesses to their misdeeds can easily be silenced. It has also facilitated reprisals against dozens of truth-tellers who courageously came forward, believing the promises that they would be protected. Many of these people have told us about the vicious, career-ending reprisals that they are now suffering. Their lives are in ruins, and the “ironclad” protection that they were promised is nowhere to be seen. There was no safe haven for them. In the remainder of this document we will elaborate on the problems summarized above. Clearly this failed system requires major reform and FAIR will contribute to the debate by publicizing specific proposals designed to create a system that will work.



A Word To Truthtellers – Your Predicament

Perhaps your boss is pressuring you to omit important information from your reports, to sanitize your audit findings, to approve transactions that break the rules, or just to turn a blind eye and pretend that some misconduct isn’t happening. Perhaps these wrongdoings are mainly about misuse of public money, or perhaps they are about issues that could affect the lives of many Canadians such as tainted food or water, contaminated drugs, or leaking nuclear reactors. Your predicament is that you feel compelled to speak out – for your own personal sanity and self-respect and to protect the public interest – but you are not sure how to go about this, and you fear that there might be negative repercussions for you. You need to understand that expressing truths that are inconvenient to those in power is

inherently dangerous and can cause serious harm to you career, to you and your family’s

wellbeing, even to your physical and mental health. This has been the experience of others who refused to overlook, condone or collaborate in wrongdoing: many have found themselves facing management denial of the problem and severe, calculated reprisals designed to silence, punish and discredit them. So, before doing anything, you must arm yourself with knowledge, for example: about the experiences of others; about the relevant legislation that may apply in your situation; about the likelihood of obtaining legal support (e.g. from your union) in the upcoming battle; and so on. The FAIR website (fairwhistleblower.ca) provides a wealth of information relevant to Canadian whistleblowers, and links to other valuable resources. You should read this document alongside another FAIR publication: The Public Servants Disclosure

Protection Act Explained, which summarizes in simple terms the main processes created by the legislation. Trying to draw attention to wrongdoing is inherently dangerous, and those who do so often suffer from relentless retaliation, typically orchestrated by their superiors. Fear of such reprisals silences most potential truth-tellers, who rightly fear for their careers, their livelihood and the potential effect on their families. This is why there have been so many scandals where no-one came forward – even in situations where many people knew what was going on and innocent people were being harmed as a result. As long as the law does not provide any effective protection for truth-tellers, we cannot blame those who chose to remain silent rather than martyr themselves and their families, especially when there is little chance of bringing about any change. We hope that this document will help whistleblowers to determine the best course of action, to protect the public interest without bringing great harm upon themselves and their loved ones. We also hope that it will spur lawmakers to implement significant reforms, rather than tinkering at the edges of a broken system.



Part 1: Key Problems

The Public Servants Disclosure Protection Act is a complex piece of legislation and some of the challenges facing the whistleblower are quite technical in nature. The following are the some of the most serious problems with the Act, explained in lay terms.

1) The scope of the law is very narrow

The PSDPA only covers a small segment of the Canadian workforce – federal public servants. The scope is further narrowed because:

a) Some important government agencies are wholly or partially excluded (Canadian forces, security agencies and the RCMP)

b) Government misconduct that involves the private sector cannot be investigated properly

c) It does not address private sector misconduct at all.

For members of the Armed Forces, CSIS or the RCMP, the protection from

reprisals is either limited or non-existent

The Armed Forces and CSIS are completely excluded from the Act – current or past employees have no protection from reprisals. Experience has shown that organizations involved in national security issues are plagued by problematic behaviour for two reasons:

a) they are more vulnerable to mismanagement and outright misconduct because they are able to conceal so much of what they do: such problems are easy to hide

b) retaliation against truth-tellers is very easy in these organizations. The simplest method of reprisal is to simply strip someone of their security clearance. This action – which is almost impossible to challenge – can instantly render someone unemployable in their chosen career for the rest of their life.

The RCMP, although theoretically covered by the PSDPA, is for all practical purposes exempted, since RCMP members cannot submit complaints of reprisal directly to the Commissioner: they must first exhaust their organization’s internal complaints procedures [Section 19.1(5)]. But the RCMP has a track record of using these internal procedures to punish whistleblowers (and anyone else who falls out of favour with their bosses), and these proceedings can take a very long time. Thus it is unlikely that any RCMP employee will ever obtain any kind of protection from reprisal under this law, even years after the event. The case of Cpl. Robert Reid provides a good example of how the RCMP takes reprisals at will against its own. Read, a 26 year veteran of the RCMP, was responsible for investigating government corruption involving the Canadian High Commission in Hong Kong. He eventually concluded that his investigation was being sabotaged by his bosses, took his concerns up the line of command and then to the media as a last resort. An RCMP external review committee vindicated Read, criticized the RCMP and ordered him reinstated – but the RCMP simply refused to comply. Read appealed adverse legal decisions all the way to the Supreme Court of Canada, which in May 2007 declined to hear his case.



Government misconduct involving the private sector cannot be investigated

properly

The public sector integrity Commissioner has no power to “follow the money” or to “follow the trail” (of evidence) and must abandon any line of investigation that leads outside the public sector [Section 34]. Consequently, in any case where subcontractors play a role, even unknowingly, or were simply witnesses, the Commissioner’s ability to investigate is crippled from the outset. If we reflect upon the major scandals that have become public in the past few decades – the tainted blood scandal, the gun registry overrun, the sponsorship scandal – every one has had significant private sector involvement. In an era where public-private partnerships of all sorts are in vogue, when much of the work of government is being done through contractors, this is a gaping omission in the law.

The law does not address private sector misconduct at all

To be fair, this law never claimed to anything more than to address misconduct within the federal government. However, Canadians should recognize that this is just a first baby step towards protecting the public from institutional misconduct. There is abundant evidence that private sector companies – such as the food industry, the pharmaceutical industry and resource industries – can cause severe damage to public health and safety and to the environment, and that regulatory oversight of these industries is often inadequate. Employees in the private sector are terrified to speak out – even in sectors such as aviation where their own lives are at risk – because of the career-ending reprisals that seem to follow almost invariably. This situation costs lives. In June 2009 FAIR testified to the Parliamentary committee investigating the Listeriosis outbreak that whistleblower protection should be extended to everyone in the food sector.

“Unless we create effective whistleblower protection for people working in the

food industry – from the public servants who make policy and oversee the

industry, to the managers and workers on the production lines – Canadians will

continue to die needlessly because of avoidable failures within the food supply.”

In December 2010 the USA did exactly this, passing the strongest whistleblower protection in history for workers in this industry, including the right to jury trials. Other countries have protected private sector employees by passing sector-specific laws (as in the USA) or ‘sector-blind’ laws, such as the UK’s whistleblower law. This covers all employees, both in the public sector and private industry and has been working effectively for more than a decade. Meanwhile Canada is still failing to adequately protect its 400,000 federal public servants, out of a workforce of seventeen million employees who should all be protected.



2) The range of avenues (for seeking investigation and redress) has been restricted rather than expanded

For truth-tellers to have any chance of prevailing, they need to retain their autonomy in selecting what avenue of redress to pursue including having access to our courts of justice. But the approach of successive governments has been to force whistleblowers into one administrative process (as defined by the PSDPA) and to foreclose all other possible remedies. This essentially renders whistleblowers second-class citizens by denying them genuine legal remedies. For example:

a) All means of access to our normal courts have been blocked b) There is little protection against bullying and harassment – for any employee c) Going public or disclosing to the media is strictly prohibited in most

circumstances.

All means of access to our normal courts are blocked

Public servants no longer have the right to sue their employer. They were stripped of this right in 2003 by Section 236 of the Public Service Modernization Act. This important and far-reaching provision was quietly passed into law soon after whistleblower Joanna Gualtieri prevailed in a jurisdictional battle over her claim of reprisals by her bosses. Justice Department lawyers had claimed that Gualtieri had no right to go to court, that her remedy was to submit a grievance – an absurd argument, as this would have amounted to asking the very people who were harassing her to investigate themselves. The Ontario Court of Appeal unanimously agreed with Gualtieri. But rather than appeal the case to the Supreme Court of Canada, where it likely would have lost, the Government simply rewrote the law and foreclosed employees from accessing our courts. Some lawyers call this ‘the Gualtieri clause’, created to prevent anyone else from ever seeking justice in the way that she did.

Subsequent court rulings such as the Vaughan case (SCC 2005) have reinforced this denial of due process for whistleblowers, forcing them into the grievance system where their concerns are often dealt with by the same cadre of managers who are orchestrating the reprisals. This situation was reaffirmed in 2009 by the Ontario Court of Appeal, which ruled that even as a whistleblower Ian Bron had no right of access to the courts – the grievance process was his only recourse. Trying to use the grievance system as a means of adjudicating cases of reprisal is rather like calling in a marriage guidance counsellor to deal with a home invasion. Decades of experience, here and in other jurisdictions, have proven beyond any doubt that it doesn’t work. Nearly always the grievance process affirms that whatever was done to the whistleblower was deserved.

There is little protection against bullying and harassment – for any employee

It appears that many of Canada’s learned judges fail to understand that bullying and personal harassment, although grievable, are not adjudicable under federal workplace



laws and collective agreements. And a grievance can not be considered to be a legitimate legal remedy with the accused wrongdoer or offending department standing in judgement of itself. It’s no wonder then that there is a growing epidemic of bullying and harassment in the public service, as evidenced by the Public Service Employee Survey, conducted every three years. The 2009 survey showed levels of harassment at a historic high with on average 28 percent of employees reporting that they had been harassed in the past two years. In some departments the percentage reporting harassment is 40 percent or higher. Yet the government seems asleep at the switch – or worse. From 2004 to 2007 Canada Public Service Agency reported annual statistics on the implementation of the Treasury Board Policy on the Prevention and Resolution of Harassment in the Workplace. These reveal a gradually worsening situation, until in 2008 the agency simply stopped issuing these reports. Widespread workplace harassment is an issue that affects all government employees and not just whistleblowers. But whistleblowers are surely the most vulnerable population because of the high risk of reprisals by managers accused of misconduct. And bullying and harassment are the weapons of choice today for managers who want to punish and dispose of employees (for whatever reason) without being called to account for their actions. This type of reprisal is no trivial matter. Over time it has deadly results, often resulting in severe, life-long psychological injuries such as PTSD. It can produce measurable changes in the brain and devastating symptoms such as nightmares, flashbacks, panic attacks, insomnia, clinical depression, and suicidal thoughts. These psychological wounds are a hard burden to bear for someone who has also lost their job, their career, their reputation and their livelihood as a result of reprisals.

Going public or disclosing to the media is strictly prohibited in most circumstances

Many experts consider that disclosure by the media is the only effective way of blowing the whistle, certainly when making internal disclosures through ‘official channels’ has failed. And once again, reference to the major scandals that we have seen in Canada illustrates the point: in every single case it was relentless media coverage that drove the process of uncovering wrongdoing, while the official response was consistently to delay, minimize, obscure and cover-up. For this reason, whistleblowers must have a clear right to go public when other methods of disclosure are not working. But this law strictly prohibits going public but for rare exceptions even when internal disclosure has clearly failed or is being dragged out for years. This prohibition of communication with public media – especially regarding government misconduct – is an assault on Canadians’ constitutional right of freedom of expression.



3) The coverage of wrongdoing excludes most real-life situations

Whistleblower laws always contain screening tests to avoid wasting resources on investigating trivia – but it’s important not to set the bar too high. Whistleblowers are simply witnesses who are usually seeing only a fragment of the whole picture: when seemingly minor violations are properly investigated, these often turn out to be just the tip of the iceberg. The sponsorship scandal was uncovered by journalist Daniel Leblanc, whose interest was first piqued by the aggressive use of the Canadian flag in federal advertising in Quebec because other advertisers weren't doing the same thing. Lacking anything meatier to work on at the time, he pursued this oddity and what he eventually uncovered brought down the government of the day. Opponents of strong whistleblower legislation often make apocalyptic predictions that without a high bar the system will be overwhelmed by a flood of disclosures of little value. But this is nonsense. To our knowledge this hypothetical scenario has never materialized in any jurisdiction: the risks to whistleblowers are so real and intimidating that even with strong laws, people don’t make disclosures without having good reason. Under the PSDPA, most real-life situations of alleged wrongdoing will be screened out and cannot be investigated because of:

a. A restrictive definition of wrongdoing b. Deference to any other actual or potential process (e.g. grievance) c. Other vague and subjective reasons for refusal.

Restrictive definition of wrongdoing

The OPSIC can only investigate alleged wrongdoing if the actions described fit the PSDPA definition of wrongdoing [Section 8]. However, the definition set out in the Act is problematic because of what it omits. For example, Treasury Board Policies (e.g. the procurement rules that were at the heart of the Sponsorship Scandal) are not specifically included, although these are among the principal instruments used for management and control in the public service. A disclosure may not be accepted if it involves only violations of Treasury Board Policies (or other Departmental rules). Instead, the Commissioner will have to decide whether the wrongdoing falls under one of the broader categories given in the definition of wrongdoing, such as ‘gross mismanagement’ – and the government lawyers who will defend the alleged wrongdoer can subsequently challenge this decision. It’s worth noting in passing that there a vacuum of responsibility regarding the enforcement of Treasury Board policies – no agency has been tasked with this. There’s also a similar vacuum regarding enforcement of the codes of conduct required by the PSDPA. OPSIC could be assigned this role, but to fulfill this effectively would need the necessary resources and authority, including changes to its mandate and a much better-defined relationship with the departmental Senior Officers responsible for disclosures of wrongdoing. At present none of this exists and the network of Senior



Officers is largely moribund, with only a handful of departments operating effective internal disclosure systems.

Jurisdictional reasons for refusal to deal with disclosures

The law allows (or in some cases requires) the Commissioner to refuse to deal with a disclosure that is being dealt with, has been dealt with, or could be dealt with by some other process. [Sections 23, 24] This means that if the whistleblower has informed anyone else about the wrongdoing (such as senior management in the department concerned, the RCMP, the Auditor General or the Privacy Commissioner) then the Commissioner may refuse to look at the case on these grounds – even though this other body may not be doing anything with the information. Even if all other avenues have been blocked (by other bodies refusing to take any action or stalling endlessly) the Commissioner can still refuse to accept the disclosure on the grounds that the matter could be more appropriately dealt with elsewhere.

Other vague and subjective reasons for refusal to deal with disclosures

Even if the definition of wrongdoing is met and there is no jurisdictional issue, the Commissioner is still not obliged to investigate. The Commissioner can refuse to deal with any disclosure [Section 24], on other grounds, e.g. if the Commissioner believes that the whistleblower is not acting ‘in good faith’; or it is ‘not in the public interest’; or any other ‘valid reason’. These vague and subjective provisions give the Commissioner enormous discretion to do nothing. So there is no guarantee that any disclosure will be investigated, regardless of the nature or severity of the alleged wrongdoing: it’s up the Commissioner to decide whether the wrongdoing falls within the statutory definition, and whether the whistleblower’s motives for coming forward are ‘pure’. Given such provisions in the law, this agency is not a refuge of last resort that will look at cases when all else has failed, but a fortress apparently designed to keep whistleblowers out and pass the buck to others.

4) The provisions for investigations and corrective action are weak

The purpose of whistleblower legislation is to uncover and correct wrongdoing, so it’s very important to have strong mechanisms for investigating disclosures properly, and then for fixing any problems found. While the PSDPA gives the Commissioner broad powers to investigate it does not provide the tools necessary to do the job properly. Specifically

a. The Commissioner has no ability to combine investigations, self-initiate investigations (except as an offshoot of an existing investigation), or conduct system / compliance audits

b. When wrongdoing is found Commissioner has no power to order corrective action or to initiate a prosecution.



The Commissioner is restricted to a reactive, fragmented approach

Imagine that you are given the job of rooting out wrongdoing within a massive organization such as the federal government. What strategy would you adopt? You would likely consider some of the following: 1) identify the departments at highest risk for wrongdoing in order to give these more attention; 2) look for patterns of disclosure and combine related disclosures into one broader investigation; 3) conduct audits of problem departments to examine their systems for ensuring compliance. The Commissioner can do none of these things, but is limited to investigating individual disclosures one at a time. The Commissioner cannot initiate any investigation without having first received a formal disclosure from someone, even if there are allegations making headlines in the media. And if the supply of substantive disclosures dries up (as may happen if the agency loses credibility) then the Commissioner has no work to do.

There is no reliable mechanism to correct wrongdoing or discipline wrongdoers

The Commissioner must report the findings of any investigation to the head of the department concerned, and if wrongdoing is found, the Commissioner can make recommendations for action, and a timeframe for the department head to report what actions have been taken. If wrongdoing is found, the Commissioner must also make a case report to Parliament within 60 days. This report includes the finding of wrongdoing, any recommendations made to the department head, and any observations regarding the adequacy of the department’s response. The Commissioner has no mandate to do anything further. This process may seem reasonable, but decades of experience have demonstrated that such powers are not enough to reliably correct serious wrongdoing. For example, although the public strongly approves of the work of the Auditor General, departments routinely ignore the AG’s recommendations year after year, choosing instead to ride out the brief storm of public indignation that follows each report. This was the case with the Sponsorship Scandal, where the AG reported procurement irregularities for years but no effective action was taken. The full truth did not emerge until Prime Minister Paul Martin chose to establish a public inquiry. Although the resulting scandal helped bring down his government, Justice Gomery had no power to discipline or prosecute the wrongdoers, nor to order corrective actions. Gomery’s recommendations for corrective action have still not been implemented (they are largely ignored in the Federal Accountability Act), and only a handful of the many participants in the Sponsorship Scandal have been prosecuted. This example illustrates just how ineffective is the traditional process of simply reporting wrongdoing to Parliament. In order to combat corruption effectively, additional powers are also required: to prosecute wrongdoers and to order corrective action. It’s also entirely appropriate for this agency to have different powers than others such as the Auditor General that report to Parliament, since it has a very different mandate. It is essentially a law-enforcement agency charged with exposing and deterring serious wrongdoing: it should have the tools required to act aggressively against the crimes and



serious malfeasance that it uncovers: tools such as order powers and the ability to launch prosecutions.

5) Most complaints of reprisal are likely to be rejected

The Commissioner has the means and the discretion to reject any claim of reprisal, thus blocking access to the Tribunal.

Jurisdictional reasons to reject a complaint of reprisal

As with disclosures of wrongdoing, the law requires or allows the Public Sector Integrity Commissioner to refuse to deal with a complaint of reprisal that is being dealt with, has

been dealt with, or could be dealt with by some other process. [Section 19.3] For example, suppose that the whistleblower has already launched a grievance against apparent reprisals by bosses and finds that it is going badly. The OPSIC will refuse to deal with this person’s complaint because there is another process (the grievance) under way. Once the grievance is settled, OPSIC will again refuse to deal with the complaint because it has already been dealt with by another process. Suppose that the bosses accused of wrongdoing were involved in settling the grievance? That doesn’t matter – because the grievance process provides a comprehensive remedy, according to legal precedents. What if the whistleblower didn’t launch a grievance? OPSIC can still refuse to deal with the case on the grounds that it would be better dealt with by some other process – like a grievance. It’s a true Catch-22 situation. Since the law allows (or requires) the OPSIC to defer to any other jurisdiction, there’s virtually nothing left that it can or must deal with: the Commissioner can turn everyone away. This is bizarre, especially when we consider that grievances, internal departmental investigations and the like almost never work in whistleblower cases – because bosses can so easily manipulate these processes and turn them into reprisals. That’s supposedly the very reason why this law was created – so that there is somewhere safe for honest employees to go when all other official channels have failed.

Short time limit to file a complaint

Whistleblowers have very little time to realize that they are being retaliated against and to file a complaint – only 60 days from when they knew about the retaliation (or from when the Commissioner considers that they should have known). This is far too little time. In practice, reprisals are usually covert at first and whistleblowers often think at first that they are just going through a rough patch with their current boss, only to discover months (or even years) later that the organization has been systematically engaged in a campaign of adverse personnel moves including negative appraisals, denial promotions, and generally making life difficult for them. The Commissioner can extend this time limit – but again the law is written in a way that puts the employee at the mercy of the Commissioner’s discretion.



Definitional reasons for rejection of a complaint

The Commissioner may judge that the complainant is not a whistleblower because they did not follow the exact steps required to demonstrate that they had made a ‘protected disclosure’. For example, raising concerns with management might not count – it may be necessary to submit a formal, written disclosure to the department’s designated Senior Officer responsible for disclosures. And if adverse actions began before this formal step was taken, then in the eyes of the law such adverse action cannot be considered reprisals for making a disclosure, since the “formal” disclosure had not yet been made. This lets aggressors off the hook – as long as they begin their reprisals quickly, before the potential whistleblower has made any formal disclosure.

The Commissioner need not refer any case to the tribunal

Finally, the law does not oblige the Commissioner to refer any case to the tribunal, regardless of the findings of the investigation. The law gives the Commissioner a broad range of reasons for refusing to refer a case to the Tribunal including the problematic provisions citing ‘good faith’ and ‘the public interest’.

Non-government whistleblowers effectively have no protection

One of the claims made for this Act is that it protects all Canadians who may blow the whistle on public service wrongdoing, not just public servants. In reality it does nothing of the sort. For whistleblowers who are not public servants there is no effective mechanism to protect them from reprisals. Anyone can make a disclosure to the Commissioner and the Act states that employers cannot retaliate against employees who have made a disclosure. But whistleblowers employed in the private sector or who are simply private citizens will be entirely on their own in trying to seek a remedy for any reprisals they experience – but without a remedy they have no protection. And make no mistake; the bureaucracy has a long arm, a long memory, and many ways of taking reprisals against people who are not public servants. Contractors can be quietly ordered to fire (and blacklist) employees who raise concerns – or risk losing government business. People who receive services or benefits from a department can suddenly find these being withheld. Personal information can be illegally accessed and leaked to smear and discredit whistleblowers. Both of these latter techniques were used against veteran Sean Bruyea, in a classic example of how whistleblowers are treated. Aggressive tax audits, intrusive surveillance, false accusations of wrongdoing leading to police investigations, even arrest... The possibilities are endless and limited only by the imagination of wrongdoers in powerful positions striving to save themselves.



6) The tribunal is unlikely to protect anyone

Following an investigation into a complaint of reprisal, the Commissioner may decide to refer the case to the Public Servants Disclosure Protection Tribunal (PSDPT), which hears evidence from both sides and makes a ruling. The tribunal can sanction the wrongdoer and can order certain remedies for the whistleblower. However, the Commissioner has no power to protect truth-tellers from reprisals, and the tribunal that is supposed to do so is likely to prove impotent. There are several reasons why the tribunal is unlikely to protect any whistleblower.

Near-impossible burden of proof

The most serious problem is that the onus is on the whistleblower to prove that the adverse actions taken were retaliation for a disclosure of wrongdoing. In practice this is usually impossible for an employee to prove since bosses engaged in such harassment generally don’t admit to it, and proof is hard to obtain. However, without such proof the employee has no recourse, no remedy, and no defence against further retaliation. In other more progressive jurisdictions, this frequently fatal blow to whistleblower cases is remediated by a reverse onus provision: once the employee has proven that there is a connection between the whistleblowing and the adverse action (e.g. a short time frame between the whistleblowing and a demotion) the burden shifts to the employer to prove that these actions were taken for good reasons other than retaliation. Even with this reverse onus, proving reprisal is not a slam dunk for the whistleblower – only about 20% prevail.

Lack of legal assistance

The second problem is lack of access to legal counsel. Those accused of retaliation will almost certainly be defended by a team of Justice Department lawyers, with seemingly unlimited time and resources, all paid for by the taxpayer. Unless the union has agreed to defend the case, the whistleblower will have to pay for a lawyer. Such legal proceedings are very costly, often running into hundreds of thousands of dollars. Moreover, finding good legal counsel familiar with litigating against the government (and willing to do so) is very difficult. The union may be unwilling to defend the whistleblower – they rarely involve themselves in individual cases – or unable to do so, for example, if the defendant(s) are also union members. The Commissioner can provide the whistleblower with access to legal assistance – up to the limit of $1,500 (or $3,000 in ‘exceptional circumstances’). This absurdly small amount is available only for pre-Tribunal matters, and it is entirely at the discretion of the Commissioner. There is no provision for any legal support for the whistleblower during the Tribunal process. Yet the Justice Department can and does routinely spend millions of dollars defending the accused, entangling the whistleblower in legal manoeuvres for years while their legal costs mount up and their health and personal relationships are damaged by the stresses of an abusive legal process. In the case of Joanna Gualtieri, the Foreign Affairs real estate specialist who exposed



massive waste and extravagance in the provision of accommodations for diplomats abroad and then sued her bosses for harassment, Justice Department lawyers dragged out her case for almost 12 years, in the process forcing her to answer more than 10,500 questions during pre-trial discoveries. The Justice Department’s legal files on this one case totalled more than 50 linear feet of paperwork – taller than a five-storey building. Clearly there is nothing in this Act to level the playing field as far as legal muscle is concerned.

No access to courts

There is little pressure on this Tribunal to perform: it can hold its hearings in secret, it can take as long as it likes, and it does not even have to file its decisions with the federal court. The only avenue of appeal is judicial review which will simply send the matter back for reconsideration if a mistake is judged to have been made – judicial review cannot order a remedy for the whistleblower. No matter how questionable the Tribunal’s actions or decisions the whistleblower cannot gain access to the normal court system, with court reporters, rules of procedure and judges who can be impartial because their tenure is secure and who could award a remedy that accounts for the wrongs committed. The seriousness of this problem can be seen by examining USA experience of a similar arrangement (a special purpose administrative body, no access or right of appeal to the courts, and no reverse onus provision): of the first 2,000 whistleblowers who submitted complaints of reprisal, only four prevailed. This is not the ‘day in court’ that whistleblowers were promised and that justice demands.

Inadequate penalties and remedies

In the event that a whistleblower does prevail, what sanctions should be handed out to the aggressor, and what remedies should be available to the whistleblower? This law seems to trivialize the matter, treating reprisals like employment disputes of the type that grievances are designed to handle. But these reprisals are typically vicious, calculated, premeditated and sustained assaults upon an employee, orchestrated by someone in a position of power who is trying to cover up unethical or even criminal acts. The effects upon the whistleblower are often devastating, life-changing and permanent. The punishment for such aggression should be harsh, yet this law limits the maximum penalty to dismissal. Similarly the law does not begin to address the magnitude of the potential harm to the whistleblower: the focus is on temporary economic loss, not psychological injury, and damages are arbitrarily capped. How should the law handle proven reprisals? In much the same way as the situation where a criminal bludgeons half to death a witness to his crime – since harassment can inflict equally devastating and debilitating wounds. There should be ‘make whole’ remedies available to the victim including compensation for permanent disabilities inflicted. And there should be personal liability on the part of the harasser: they should not be shielded by their department and their legal bills covered by the taxpayer. The bottom line is that the ‘ironclad protection’ from reprisals that this Tribunal supposedly offers is a process laden with pitfalls for the whistleblower, likely to languish



(perhaps for years) without legal assistance in a secretive and unaccountable body, with a burden of proof (for reprisals) that can rarely be met, and remedies that don’t come close to compensating whistleblowers whose lives have been devastated.

7) The entire process is shrouded in impenetrable secrecy

This is an extraordinarily secretive process, and this secrecy benefits only the accused wrongdoers. It facilitates delay and obstruction in the name of ‘procedural fairness’, and shields departments from embarrassment. It works against the whistleblower and it does not serve the public interest Virtually everything that is reported to the Commissioner (or is discovered during investigations) is kept secret – forever. The only substantive information ever revealed about wrongdoing is the information included in the Commissioner’s case report to Parliament. This report may be as extensive or as terse as the Commissioner chooses, but in either case no further information is available to anyone.

Access to Information

The Act carefully and precisely blocks all possible avenues of access to the details of the Commissioner’s investigations, putting these beyond the reach of Access to Information laws not just for a few years, but forever. This is one point on which the Commissioner has no discretion. This is claimed to be for the protection of the whistleblower, but the effect is to shield the alleged wrongdoers – and OPSIC staff – from any possible scrutiny or challenge.

Misclassification of documents

Government departments and agencies have frequently been criticized for hiding embarrassing information by incorrectly classifying documents e.g. as solicitor/client privilege and/or cabinet confidence. In other jurisdictions, this shield of confidentiality can be penetrated in certain circumstances to allow alleged wrongdoing to be properly investigated. The PSDPA does not do this. Under this Act such classified information cannot ever be disclosed – either by an employee whistleblower or by the Commissioner.

Secret hearings

The tribunal may elect to conduct its proceedings in camera (i.e. in secret) if either of the parties requests this – the agreement of the other party is not required. Those accused of reprisals will surely call for secret hearings, while the whistleblower will surely object, but likely to no avail.

Decisions need not be filed with federal Court

Even when the tribunal has completed its work and handed down rulings, including penalties for reprisals and/or remedies for the whistleblower, these need not be filed with the federal court, so that no court reporter can discover what has been going on. What possible justification can be given for this provision? It’s simply another part of the impenetrable shield of secrecy that surrounds this process.



Gag orders

Regardless of what party is in power, it is standard practice for the Government of the day to play down the severity of potentially embarrassing disclosures, and to seek to reassure the public that the problems were minimal and have already been put right. A whistleblower will probably feel strongly that the public should learn full details of the wrongdoing that they have uncovered, but once they make a disclosure to the Commissioner they have essentially gagged themselves and handed over to the Commissioner full control over what happens to the information. And when whistleblower cases are settled by the government, there is invariably a draconian gag order attached, which prevents the whistleblower from ever discussing the wrongdoing. (Incidentally, in the USA gag orders can only gag the quantum of settlement and cannot extend to the substance of the case – in the words, the whistleblowing.) Such gag orders are an abuse of power, whereby public money is used to bully, blackmail and bribe victims of harassment, to force them into perpetual silence in return for an end to their ordeal in the legal system. They clearly work against the public interest. Yet this law does nothing to limit the use of such gag orders.

8) The legal strategy is perverse and ill-conceived

The law is unwieldy, complex and costly

Good legislation is succinct and unambiguous, providing a clarity that makes for effective implementation. Good legislation also makes full use of existing mechanisms that work and does not re-invent the wheel. This law is the opposite on every count – it is a massive, complex, expensive mess. It creates a labyrinth of complex provisions, full of ambiguities, that almost no-one can claim to understand fully. Moreover, this law abrogates the common law rights that the whistleblower would otherwise have. It doesn’t enhance legal protection for the whistleblower, rather it restricts protections that the whistleblower already has at common law. This law is massive, in part because it tries to do so much. To provide some comparisons, the text of the PSDPA law is three times the size of the legislation that has, with modest changes, provided our Auditor General’s mandate since 1867. It is three times the size of the UK’s legislation, passed in 1998, that has been so effective there for more than a decade. It is six times the size of the private members bill that was written by FAIR’s founder Joanna Gualtieri and briefly debated in Parliament in 2004 – a properly designed law that focused solely on providing real protection for whistleblowers, and did so without creating any new agencies. As one example of complexity, within its 60 sections the Act contains no less than 35 references to the Royal Canadian Mounted Police Act, mostly spelling out exceptions in the way that RCMP members are to be treated. It’s difficult to see why the RCMP requires such extensive special treatment, or why all these provisions are even necessary. Finally, it is very costly to implement. The two thus-far-useless agencies that it has created – the Office of the Public Sector Integrity Commissioner and the Public Servants



Disclosure Protection Tribunal – have a combined annual budget of more than $8 million. Over the course of the three years since their creation, about $15 million of taxpayer money has been squandered. This money would have been much better spent providing adequate legal aid for whistleblowers in our regular court system. In its size and complexity, this regime is tantamount to a complete new quasi-judicial system designed just for whistleblowers – but one that seems designed not to work. It operates inside a bubble, shrouded in impenetrable secrecy, sealed off from our proper legal system, with layer upon layer of barriers and traps that ensnare whistleblowers, reject their cases and deny them due process. This system not the safe haven that was promised to honest employees: it is more like a bureaucratic obstacle race, designed to prevent anyone from completing the course.



OPSIC’s Track Record

The following pages summarize the statistics provided by the Office of the Public Sector Integrity Commissioner (OPSIC) in its first three annual reports, laid out in a graphical manner to facilitate understanding. To what extent is this disappointing track record a reflection of the Commissioner’s strategy, and to what extent is it a result of flawed legislation? In our view it is both – but the situation cannot improve much without major changes to the law. These statistics illustrate how the shortcomings in the law – which FAIR first pointed out in 2007 – have caused the system to fail: rejecting most cases, initiating very few investigations and resulting in no findings of wrongdoing or reprisal.

Disclosures of wrongdoing

Reasons given for rejection of disclosures of wrongdoing

The chart below reveals the most frequently-used reasons for rejecting disclosures of wrongdoing. Note that the chart covers only the period 2008-2010, since the Commissioner’s first annual report did not disclose this type of information.

Performance record for disclosures of wrongdoing

The chart below shows the attrition of cases (from left to right) as they move through the steps in the process, from an allegation of wrongdoing to an investigation that supports this. Of 170 disclosures of wrongdoing received between 2008 and 2010, only nine were accepted for investigation. After three years of operation only four investigations had



been completed and none had resulted in a finding of wrongdoing. Note that for what we would consider a successful outcome there are additional steps involved, not shown below: the Commissioner’s (non-binding) recommendations to the department concerned, and a case report to Parliament, and Parliament’s response (if any) to this information. Based upon experience, it is by no means certain that these steps will result in the wrongdoing being stopped or the wrongdoers sanctioned.

Disclosures of wrongdoing

2007-2010

565

170

9 4 00

100

200

300

400

500

600

General inquiry Disclosure submitted Investigation begun Investigation

completed

Finding of wrongdoing

Complaints of reprisal

During the two-year period between 2008 and 2010, the Commissioner rejected 18 cases on the basis that “the disclosure did not stem from a protected disclosure”, six cases on the basis that the adverse actions “did not meet the definition of reprisal”, and another six because the whistleblower did not file a complaint within 60 days of the reprisals starting. During this same two-year period, twelve complaints of reprisal were rejected because the Commissioner considered that they had been or could be better dealt with by someone else. It seems outrageous that her office should ever refuse to deal with alleged reprisals on this basis, since there is no other agency in Canada mandated to provide protection to

whistleblowers. By refusing to accept such cases the Commissioner’s office has denied due process to people who have no other possible remedy. Combined, these reasons for refusal have blocked almost every case. Out of 58 complaints, only four led to investigations. The two investigations completed found no reprisal. (Two investigations were not yet complete.) In three years the Commissioner referred not a single case of reprisal to the Tribunal.



Reasons given for rejection of complaints of reprisal

The chart below reveals the most frequently-used reasons for rejection of complaints of reprisal. Note that the graph covers only the period 2008-2010, since the Commissioner’s first annual report did not disclose this type of information.



Performance record for complaints of reprisal

The chart below shows the attrition of cases (from left to right) as they move through the steps in the process. A whistleblower may be successful in obtaining a remedy if their complaint of reprisal makes it all the way to the final step – a finding of reprisal by the Tribunal.

Complaints of reprisal

2007-201058

42

0 0 00

10

20

30

40

50

60

70

Complaint

submitted

Investigation

begun

Investigation

completed

Finding of reprisal Referral to tribunal Tribunal finds

reprisal

Of 58 complaints of reprisal received between 2008 and 2010, only four were accepted for investigation. After three years of operation only two investigations had been completed, none had resulted in a finding of reprisal and hence the Tribunal that is

charged with adjudicating cases of reprisal never sat.

Based on experience, by far the most arduous, expensive and time-consuming part of this process will be the tribunal hearings: these may last for years. Yet because the integrity Commissioner acts as the gatekeeper to the tribunal, no-one has yet reached this step. Everyone fell at the first couple of hurdles on this very long obstacle course.



Part 2: Next Steps – Developing Solutions

In December 2010, with the support of Canadians for Accountability and the Government Ethics Coalition, FAIR initiated a process that is designed to build consensus regarding how to rebuild our whistleblower protection system. This document represents the first step – clearly defining the problems. The next step is to devise solutions. We intend to engage with others who are willing to participate, including our sister organizations in the USA, UK and Australia. We will not rewrite the law, but we will set out what we believe to be the best strategy for going forward, and specify the types of changes required. Some of the solutions are obvious and suitable amendments already drafted. However, there are some issues where the answer may not be straightforward, and some careful thought is required, for example:

1. Securing whistleblower protection for private sector employees

The need for this coverage (and the challenges in achieving it) were explained in the introduction

2. Introducing a ‘False Claims Act’ approach When to introduce legislation that gives whistleblowers legal tools and financial resources to prosecute wrongdoers themselves (modeled on the False Claims Act). This complements traditional whistleblower laws and has proven to be a powerful tool to prevent companies from defrauding the government

3. Providing multiple viable channels for blowing the whistle This is important because, due to institutional hostility to whistleblowers, some of the theoretically-available channels are often ‘out of action’ at any given time. For example, because OPSIC was given exclusive jurisdiction over whistleblower cases there was a complete system breakdown for three and a half years because one person – the Commissioner – was reluctant to find wrongdoing. There was no other channel available to whistleblowers. As a minimum, OPSIC’s exclusive jurisdiction over whistleblower cases needs to be eliminated. The Tribunal should also be eliminated since this is certain to be much less effective than our normal court system. Whistleblowers also need to have direct, unimpeded access to the courts (with appropriate legal assistance) to protect themselves from reprisals, rather than being forced to rely on a third party such as OPSIC to act on their behalf.

The government needs to be a bit more humble this time. Rather than touting the supposedly world-class uniqueness of our ‘made in Canada’ solution (which didn’t work at all) it needs to learn from others and adopt tried-and-tested best practices that have been proven to work elsewhere. Human nature and the tactics of wrongdoers are the same the world over, and our legal system has much in common with some of these other jurisdictions. We hope that this time the government will choose to listen to the ideas and experience of NGOs and other organizations that are dedicated to the issue of government accountability and whistleblower rights.



Other Sources of Information

1. Canada’s federal whistleblower legislation – in plain English A concise explanation of the main whistleblower provisions of the Public Servants Disclosure Protection Act, written in plain English. http://fairwhistleblower.ca/psdpa/psdpa_explained.html

2. Charts and tables summarizing OPSIC’s performance 2007-2010: http://fairwhistleblower.ca/psdpa/performance

3. Charts and tables summarizing the reasons given by OPSIC for rejecting disclosures of wrongdoing and complaints of reprisal 2008-2010: http://fairwhistleblower.ca/psdpa/rejections

i The Government Ethics Coalition is a Democracy Watch-coordinated, nation-wide alliance made up of more than 30 citizen groups with a total membership of more than 3 million Canadians.

whats wrong with the psdpa

Documents