Enhancing Whistleblower Protection

Submitted By
Transparency International Canada

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whistleblowing is outdated and out of step with internationally recognized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).

 

Comments

Alyson Mosher - June 26, 2018

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.

Janet McDonald - May 01, 2017

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.

David Hutton - May 27, 2016

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/…

open-ouvert - October 17, 2017

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

Natalie Kurekas - May 25, 2016

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.

Susan Carter - May 14, 2016

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.

John Ritchie - May 13, 2016

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.

John Ritchie - May 13, 2016

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.

Claire Woodside - May 12, 2016

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.

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