Alberta’s whistleblower protection law is deeply flawed with serious adverse consequences for Alberta whistleblowers and the public.
This state of affairs has been made worse by the province's Public Interest Commissioner (PIC) Marianne Ryan who, in a report to a legislative committee last year, demonstrated her remarkable lack of knowledge of Canadian law, of the whistleblower protection law that she is charged with administering, and of the human reality of whistleblowing. There are a number of things she gets wrong.
1. The necessity of reverse onus
To start with, she does not understand the most fundamental legal requirement to protect whistleblowers from reprisal by their employer – requiring the employer to prove that its apparent reprisal against a whistleblower was not because of their whistleblowing. This is called “reverse onus.”
If building an effective whistleblower protection system is like ascending a ladder, the very first rung is providing a ‘reverse onus.’ Without this rung, the whistleblower faces the almost impossible obstacle of having to prove the employer’s reprisal was because of whistleblowing. There are many more rungs needed, but this is the most basic. Yet the Commissioner not only dismissed the need for such a provision in the law under review, but she also denounced the whole concept of reverse onus, stating that it “does not conform to the principals [sic] of procedural fairness and natural justice, which are established through Canada's common law."
This was an astonishing statement for someone in her role because it is complete nonsense.
In fact, reverse onus provisions have been part of Canadian law since Confederation, notably in labour law, where union members need protection from disguised reprisals from employers. These provisions have also been effective and uncontroversial. It has long been accepted that they are needed and that they work. For similar reasons, reverse onus provisions have also been recognized for decades to be an essential part of whistleblowing laws: without them, the law is ‘dead on arrival’. How Alberta’s Public Interest Commission could not know this is quite worrying.
2. The need for a whistleblower to be able to speak publicly
The second rung is that the law must provide a clear path for the whistleblower to make their concerns known to public under certain prescribed conditions. This is an essential safety valve, enabling citizens to learn about wrongdoing when official channels have failed or even when officials become part of a cover-up. But again, the Commissioner dismissed the very concept, summarily rejecting what is standard practice, found in every credible whistleblowing law elsewhere.
3. Providing protection for those in both the public and private sector
The Commissioner also stated that (as far as she was aware) no other jurisdiction has a single whistleblower protection body covering both the public and the private sector. Again, this is simply wrong, and it carries the false implication that covering both sectors is difficult or unusual. In fact, such arrangements are commonplace and form the third rung of a proper ladder. The UK has had such coverage since 1998, and today more than 25 countries have single laws that cover both the private and public sectors -- many of them overseen by a single body.
4. Assessment of Alberta’s Law
With this deeply flawed understanding of whistleblower protection law, it is no surprise that PIC’s own assessment of Alberta’s law, which was requested by the legislative committee, makes no sense. The PIC concluded that the Alberta law is “strongly in line” with international best practice – in spite of the three missing key elements described above and numerous other flaws. The Centre for Free Expression’s own detailed assessment found Alberta’s law to be worthless – the opposite of international best practice.
But the problems do not stop there. Perhaps even more troublesome is her apparent indifference towards whistleblowers.
The first thing anyone studying this field learns is that whistleblowers are very vulnerable to reprisals, and frequently suffer life-changing consequences for speaking out against abuses of power. There are mountains of research studies of this universal phenomenon, trying to understand it better. But the Commissioner seems oblivious of this important dynamic, which is the central challenge of whistleblower protection. Neither in her report nor in hours of testimony before the committee, did she acknowledge that whistleblowers provide an important service to the public and make themselves vulnerable by doing so. Based on her words and her track record, she seems to see them as liars and troublemakers.
More than 55 whistleblowers have submitted formal complaints of reprisal to her office, yet upon investigation, PIC rejected all of them. Reprisals, here in Alberta? “It hasn’t happened” according to the testimony of PIC investigations manager Chris Ewaniuk. Not only is this bold claim implausible, we know that some of these people have indeed suffered serious reprisals – because we have spoken to them.
The attitude of the Commissioner and her staff is evidently incompatible with the central purpose of this agency. No wonder it is ineffective.
What is to be done?
What can be done about this? The responsibility for providing real protection for whistleblowers and for the public, lies with the Alberta government, which needs to take decisive action to rectify the current situation.
First, a proper assessment of Alberta’s whistleblower protection law should be carried out, not by an Alberta Government agency but by a truly independent, impartial and expert body – like the Government Accountability Project (GAP) the leading NGO in this field, which has assisted dozens of countries in formulating their whistleblowing laws and generally does so without charge. Expert recommendations for fixing the law will flow directly from this.
Second, a new Commissioner should be appointed who has the knowledge and experience required for this important job, and whose attitude towards whistleblowers is likely to encourage them to come forward.
Thus far, Alberta has slavishly followed the federal government’s lead by putting in place a façade of whistleblower protection – a toothless law and an agency whose main goal seems to be avoiding embarrassment to the government. How bad is Ottawa’s approach? A recent international study of more than 40 countries found Canada’s federal law to be the worst national whistleblowing legislation on the planet, tied with Lebanon.
It’s time for the Government of Alberta to show some of the courage and independence that Albertans take so much pride in -- by putting in place a system that will truly protect the public from abuses of power. Many other jurisdictions have already done this, and there are criteria that set out best practices in detail. It’s not rocket science. It just requires the political will to do the right thing.