Enhancing Whistleblower Protection

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Submitted By
Transparency International Canada
Tags
Votes: 125

Problem to be addressed: Canada’s current legal framework for
whistleblowing is outdated and out of step with internationally recognized
best practices. The most serious deficiencies are 1) lack of protection for
public sector whistleblowers, either at a federal or provincial level, and 2)
an almost complete lack of coverage of the private sector.

Most of the current legislation focuses on procedures for handling
allegations of wrongdoing, rather than on protection for the whistleblowers.
At the federal level, the Public Servants Disclosure Protection Act (PSDPA)
created two new agencies: (1) the Office of the Public Sector Integrity
Commissioner and (2) the Public Servants Disclosure Protection Tribunal. Only
the Tribunal can provide whistleblowers with a remedy, but access to the
Tribunal is controlled by the Integrity Commissioner. The effectiveness of
this mechanism has been brought into question, as the Commissioner has
referred only seven whistleblowers to the Tribunal, and no case has yet
reached the point where the Tribunal could order a remedy for the
whistleblower.

One example of the shortcomings of the PSDPA is that the onus is on the
whistleblower to prove that adverse actions were intended by the employer as
reprisals: an almost impossible task. Best practice is to reverse the onus by
requiring the employer to prove that adverse actions against the
whistleblower were not reprisals.
Of the six provinces that have whistleblowing laws, only one (Ontario)
provides a mechanism for whistleblowers who have suffered reprisals to seek a
remedy. None of Canada’s whistleblowing laws contains adequate measures for
preventing or halting reprisals in the first place, before the whistleblower
suffers serious harm.

There is virtually no coverage of the private sector in Canadian
whistleblowing laws. The federal law (the PSDPA) does not address private
sector wrongdoing.  For the public sector wrongdoing that it does cover, the
PSDPA does not allow private sector participants to be either investigated or
sanctioned.

There are currently no steps being taken to bring Canadian laws in line with
best practices per Canada’s G20 commitment. The PSDPA, which came into
force in 2007, requires that the President of the Treasury Board conduct a
five year review of the legislation and report on the review to Parliament
and the Senate. Despite this legal obligation, no review has been conducted
to date.

Main Objective: Demonstrate a commitment to creating a strong federal
legislative framework that will enable workers in both the private and public
sectors to speak up about wrongdoing, risk or malpractice without fear of
reprisal; and work with the provinces to provide similar frameworks at a
provincial level.

OGP Challenge Addressed: Improving public integrity, improving public
services, increasing corporate accountability

Verifiable and measurable milestones to fulfill the commitment:

Conduct a formal and independent review of the Public Servants Disclosure
Protection Act, with substantive input from civil society and
internationally-recognized experts, and publicize the recommendations of the
review (August 2017)

Draft and table amendments to existing federal law to afford whistleblower
protection to all cases of wrongdoing involving government resources,
regardless of the employment status of the participants (public or private
sector) (2018).

Launch a public consultation on the development of a federal whistleblower
protection law that covers private sector wrongdoing (2018).

Establish a dialogue with the provincial governments and agencies,
particularly those without whistleblower protection laws, to discuss how to
enhance whistleblower protection in these jurisdictions (2017).

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Comments

Submitted by Linda on November 24, 2021 - 11:36 PM

I agree with this article and unfortunately it is far too late to help many who have suffered reprisals at the workplace when they have reported unsafe /unethical practices

Submitted by LL on October 07, 2021 - 11:18 PM

Even within the Canadian healthcare system there is a culture, at many times, much like Facebook and other private organizations. It is not very healthy.

Targeted misinformation is often wielded by a few with power and privilege to maintain the status quo for personal benefit.

This makes food of healthcare's younger bright minds - who either leave the industry and often Canada entirely for their survival (after realizing as-advertised values of compassion, service, altruism, & trust are shrinking in prevalence in reality), or suffer burnout, suicide, and other healthcare complications while trying to heal the system from within. In both instances, a lack of legal protections means they are often labelled as whistleblowers or otherwise reprised to silence them.

This undermines patient and health system outcomes for all, making our health and innovative capacity as a diverse, resource-rich, and highly trained nation of individuals and communities increasingly unsustainable and uncompetitive.

Whistleblower laws and more support for fearful voices that includes healthcare, especially its most vulnerable struggling to heal the system from within, is critically needed if we are to ever learn from our (medical) mistakes, safely innovate antiquated practices, and provide a level of care our diverse populations expect (but in reality, only a few have the privilege to receive - which is not sustainable, competitive, or morally fulfilling for ourselves and future generations)

Submitted by jc on June 03, 2021 - 2:02 PM

I had a Assistant Deputy minister laugh in my face when I discussed whistleblower protection laws. This system is an utter farce but what can you expect from a government willing to kill indigenous babies and bury them in mass graves. The governments of Canada are rotten to the core.

Submitted by ds on November 21, 2021 - 1:10 PM

I agree about the whistleblower laws, and systemic problems with Canadian government. But, the middle part requires more explanation. Are you talking about the graves related to residential schools? Those graves aren't babies and aren't claimed to be from killing anybody. Most are deaths from Tuberculosis, and others from various diseases that killed young people over the 19th and 20th century, and killed children of all backgrounds.

The tragedy is mostly about the lack of involvement of the families and communities that they came from, use of unmarked graves, and substandard care or compassion. I'm not aware of any of them being "mass" graves either, as that implies enough bodies at once to bury many at the same time. We're talking about a few thousand children over 150 years. I could be wrong, but I haven't seen anything reported to suggest that they died at a higher rate than any other demographics at the time.

The issue is care and compassion and how the children, families, and communities were treated, ignored, or made to suffer. If you have information on killing of babies and mass graves, that's a very different situation that needs exposing.

Submitted by John J. on February 25, 2021 - 1:38 AM

Honestly, I've been laughing a lot about the USA in the recent years but go learn today that there's absolutely no laws protecting whistleblowers disgust me. This is nothing short of shameful coming from a democratic country and something should be done now to, at the very least, protect employees from the public sector.

Submitted by Marianne Knight on February 24, 2021 - 5:53 PM

In defence of whistleblowers
December 3, 2019
By Pierre Chauvin
David Hutton, a whistleblower protection advocate working at the Centre for Free Expression (CFE) at Ryerson University in Toronto, and previously of FAIR — an organization dedicated to counselling whistleblowers facing potential repercussions.
Laws intended to protect public servants across the country do exist, but according to Hutton’s analysis, most of them are ineffective and require whistleblowers to first clear a number of hurdles.
“Canada has the international reputation of being the Titanic [disaster] of whistleblower protection,” he says.
At the federal level, whistleblowers experiencing reprisals can turn to the Public Servants Disclosure Protection Tribunal. But to get there, the Office of the Public Sector Integrity Commissioner has to refer them. And once they start the process, it is up to the whistleblowers to prove that the actions taken against them are reprisals.
“The law stacks the odds against them; it’s very expensive and time-consuming.”
https://www.ohscanada.com/features/in-defence-of-whistleblowers/

Submitted by Marianne Knight on February 24, 2021 - 5:49 PM

The Ontario Provincial Police have refused to investigate
Threats and retaliation against employees
425.1 (1) No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so,
• (a) with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or
• (b) with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.
Punishment
(2) Any one who contravenes subsection (1) is guilty of
o (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
o (b) an offence punishable on summary conviction.
• 2004, c. 3, s. 6
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-…

Submitted by Marianne Knight on February 24, 2021 - 5:48 PM

Canada needs to get serious about whistleblower protections. Here’s why
... according to top experts in the field, our nation (Canada) has some of the world’s worst protections. “Currently, Canada’s whistleblower law is the object of consistent international ridicule,” says Tom Devine, the legal director of the Government Accountability Project (GAP) in Washington, D.C. “It’s regularly held up as an example of free-speech rights that are false advertising in practice.” https://www.cpacanada.ca/en/news/pivot-magazine/2020-04-27-canada-prote…

Submitted by Marianne Knight on February 24, 2021 - 5:46 PM

Ontario does not offer a remedy, there is a reference to protection from reprisal in the Public Servants Act but you must be an employee of a Crown agency to utilize it or to make a complaint to the Integrity Commissioner. In Feb 2015 I filed a formal notice of wrongdoing with the Board of Directors of a provincially funded agency of fraud involving hundreds of thousands of dollars intended for individuals with autism and developmental disabilities, was bullied, denied accommodation and fired six weeks later - have been fighting for justice ever since, have now filed lawsuits against the province and Canada quoting Khadr v. Canada.

Submitted by Melissa Power on January 07, 2021 - 11:14 PM

Why are get being dragged when it comes to a full circle whistle blowing process? Protection is crucial in order for whistle blowing to occur in the first place.

Submitted by Julia on November 26, 2020 - 7:19 AM

Private citizens should be offered whistleblower protection. Do you know that Toronto Police employees who befriend health professionals, teachers and members of regulatory and oversight committes usually threaten people who complain against their friends?
When you complain to the Police Oversight body, the Toronto Police downplay the complaint, though if Joe did such a thing (threaten a complainant), they would be in jail.

Submitted by Version frança… on October 11, 2020 - 3:13 PM

Ce texte n'est pas disponible en français, même lorsque je sélectionne le français comme langue de navigation sur le site.

Je vous demande de respecter la loi sur les Langues Officielles et de rendre ce texte disponible en français.

Merci,

Submitted by Michael Y Zuk DDS on April 21, 2020 - 2:38 PM

The Alberta dental authority uses its powers to crush publications that notify the public of harmful activities within the profession which are confirmed by internal publications. The over-treatment of unsuspecting dental patients is documented. The ADA&C lawyers take the position that notifying the put of these concerns 'harms the integrity of the profession' and is therefore professional misconduct. Where does this place protection of the public trust in their balancing act of relative importance?

Submitted by Andrew on March 17, 2020 - 1:09 AM

Please consider in earnest adding amendments relative to "community based' and/or derived whistle-blowing. One does not always have to be public, or private sector to be privy to "clandestine," or "secretive" information.

Thank you.

Submitted by Lauri Sue on February 15, 2020 - 9:30 PM

I volunteer on the board of a religious organization. We want to create a policy to protect whistleblowers, but don't know where to start. Is there a template or outline we should follow?

Submitted by Alyson Mosher on June 26, 2018 - 2:02 PM

There needs to be more protection for private sector whistleblowers as well as public sector. Great gains were made in the last year for public but their is still a lot of risk in the private sector. As a previous whistleblower it was one of the hardest decisions I have made and it shouldn’t have had to be. Too many companies (such as banks) have shady ethics that put the bottom line first rather than the customer. Someone reporting on this problems in the private sector can face harassment, bullying and even termination not to mention the risk of legal and financial consequences if speaking out can be considered defamation. There were great gains this year for public sector whistleblowers,but more needs to be done to protect the private sector whistleblower.

Submitted by Janet McDonald on May 01, 2017 - 4:46 AM

I support the proposed changes. Sheila Copps, in one of her books, stated that the proposed whistle blowing legislation they had attempted to pass got so amended that it were better that it had never been passed, worse than the one before it. Whatever you put in place, be assured that I have found that the churches go no further in their dealings with this matter than that of legislation as its guide.

Submitted by David Hutton on May 27, 2016 - 4:59 PM

I fully support TI-Canada’s submission on whistleblower protection. Having spent more than a decade actively working in this field, my observation is that Canadian whistleblowers are significantly worse off today than they were twenty years ago despite repeated promises by politicians to protect them, starting with Jean Chretien in 1993. The two agencies created by the Federal Accountability Act in 2007, supposedly to protect whistleblowers, have been in my observation almost completely ineffective. Even the new departmental codes of conduct required by the Act have in many cases been crafted to make it easier, not harder, to fire whistleblowers. This wasted effort has also been costly. Since 2002 federal governments have spent about $50 million on whistleblowing agencies with little to show for this expenditure. Yet the urgent need to improve this system is not being addressed: the legally-required five-year review of the law is now more than four years overdue. A government-commissioned study completed in December 2011 found that most federal workers see job reprisals as the likely outcome of any effort to expose a wrong. In fact, bureaucrats said they believe that it's typically the whistleblower who gets punished. One participant said “Show me that these stories have happy endings. Show me the [whistle-blower] who got a promotion and the wrongdoer who lost his job.” Regrettably, to this day this almost never happens in Canada. This situation needs to change -- both for the sake of the honest and courageous employees who speak out about wrongdoing, and for the sake of the public, whom they are striving to protect. Reference: What's Wrong With Canada's Federal Whistleblowing Legislation https://web.archive.org/web/20150306013638/http://fairwhistleblower.ca/files/fair/docs/psdpa/whats_wrong_with_the_psdpa.pdf

Submitted by Todd on July 13, 2019 - 8:26 PM

In the case of Galen Weston; if whistle-blower protections are so lacking how did Galen get such a good deal? When were the provisions that allowed him to skirt all accountability introduced into law and by who? What I am learning about whistle-blowing and what I am seeing are two different things.

Submitted by open-ouvert on October 17, 2017 - 3:48 PM

Hi Dave, Unfortunately we cannot help you much here. Please contact your local police for help or seek for help within your organization's HR department. Sorry we could not be of more help. The Open Government team

Submitted by Natalie Kurekas on May 25, 2016 - 4:12 PM

I fully support TI-Canada’s submission on whisttleblower protecton. Supporting the courage of individuals that expose wrong doings at great personal risks should be a priortiy to us all. This is an issue of great importance for Canada.

Submitted by Susan Carter on May 14, 2016 - 4:32 PM

I fully support the contents of the submission on whistleblower protection and current laws regulating whistleblowing. I would urge the President of the Treasury Board, who is responsible for launching the promised five-year review of the legislation, to initiate this long-overdue Review.

Submitted by John Ritchie on May 13, 2016 - 3:24 AM

I fully support the submission made by Transparency International Canada. Protection of those who are brave enough to expose corruption, usually at considerable risk to themselves and their careers, must be a priority in Canada.

Submitted by John Ritchie on May 13, 2016 - 3:24 AM

I fully support the submission made by Transparency International Canada. Protection of those who are brave enough to expose corruption, usually at considerable risk to themselves and their careers, must be a priority in Canada.

Submitted by Claire Woodside on May 12, 2016 - 4:13 PM

A strong free, free press is a cornerstone of democratic societies. However, the ability of the press to lift the veil on corruption in the public and private sectors often hinges upon courageous individuals willing to speak up about wrongdoings. Too often, these whistleblowers pay a serious price and face losing their livelihoods and threats to their personal safety. Canada must take action to strengthen whistleblower protection for individuals in the public and private sector. I support TI-Canada's submission, which calls upon the government to take action to reform Canada's whistleblowing laws. TI-Canada's submission details clear milestones, which should be spelled out in Canada's Action Plan on Open Government 2016-2018. Canada cannot effectively fight corruption, if those people who put everything on the line to expose it, are not protected.