Will Carney choose to fix Poilievre’s dysfunctional 2007 whistleblower ‘protection’ law?

Canadians have a new, serious, and knowledgeable government-commissioned report that provides an opportunity to fix our woeful federal whistleblower protection law – the Public Servants Disclosure Protection Act (PSDPA), found by the International Bar Association to the be among the worst on the planet. 

The report is by an external PSDPA Review Task Force set up by the President of the Treasury Board in 2022.  Their report is a big deal because for the first time in 20 years we have the real possibility of replacing Canada’s dysfunctional and discredited whistleblowing law with one that will actually work to protect whistleblowers. 

The PSDPA was supposed to protect public servants who attempt to expose serious wrongdoing within the public service. It was adopted under the guidance of Pierre Poilieve in 2006 as part of the Federal Accountability Act and came into effect in 2007.  At the time, it was relentlessly promoted as “ironclad” protection for whistleblowers and the “Mount Everest” of whistleblower protection. In reality the PSDPA does provide strong protection, but to the wrong people – shielding senior bureaucrats and the government from embarrassment for wrongdoing while leaving the whistleblowers who expose the wrongdoing vulnerable to life-changing reprisals. 

It's difficult to explain just how destructive this failed law is.  Since coming into force in 2007, almost 7,000 public servants have come forward with information about suspected wrongdoing, and more than 700 have lodged formal complaints of reprisal, yet no-one has ever been awarded compensation by the Tribunal set up by the law specifically for this purpose. 

The law has never led to the exposure of a major scandal of the type so frequently reported by our media, and this failure to prevent wrongdoing has had tragic consequences. We have compelling evidence that the Phoenix Payroll meltdown and the Lac Megantic disaster were both preventable had whistleblowers’ reports been investigated, but they were not.

In effect the PSDPA does exactly the opposite of what was claimed, and by failing whistleblowers also fails to protect the public from government wrongdoing.

Successive governments have apparently welcomed this lack of accountability, since all attempts to improve the PSPDPA have been blocked, often in blatant defiance of the law. These efforts include: 

• In 2006, the rejection of the Senate’s 16 amendments which addressed serious problems in the PSDPA. 
• In 2012, Treasury Board’s flouting of its own legal requirement to launch a 5-year review, by doing nothing.
• In 2017, the complete disregard of a unanimous report by the Standing Committee on Government Operations (OGGO) which had been asked by the government to review the PSDPA, did a thorough job, and recommended many changes. None of these was implemented. 
• In November 2022, the Treasury Board Secretariat announced the PSDPA Task Force as the long-delayed 5-year legislative review – as if the 2017 review by OGGO had not occurred. This was seen by many as a ploy to pre-empt a private members bill (C-290) and cause further delay. Bill C-290 was watered down in committee and allowed to die on the order paper.

The result is that the Task Force’s report comes a full 20 years after the passage of the PSDPA into law, during which time not a single paragraph has been changed.

Defying its questionable origins, the Task Force has been thorough, hearing from 57 stakeholders, conducting a survey that captured the views of more than 3,500 public servants, and developing 35 recommendations that respond to what they learned. 

Some of the recommendations are sweeping, changing the structure of the whistleblowing system, for example by scrapping the Tribunal, set up under the PSDPA to hear complaints from public servants alleging reprisals for reporting wrongdoing, and transferring some of its responsibilities to the Public Sector Integrity Commissioner (PSIC), and by bringing the security and military services directly under PSIC’s jurisdiction. If all recommendations are fully implemented this would transform the PSDPA for the better, as well as strengthen other administrative processes that are supposed to ensure ethical leadership within the public service. 

The Task Force’s survey of public servants also produced some remarkable and concerning statistics. For example, a stunning 44% of respondents had witnessed serious wrongdoing in the workplace. Of these 66% indicated that this was a traumatic experience. (In our experience this is because it shook their trust in management and their sense of personal safety, especially when they see that nothing is done to remedy the problem.) And given four hypothetical scenarios of how suspected wrongdoing might be addressed, 96% indicated that management was likely to choose an inappropriate one. 

The report is not perfect. One issue that jumps out is how to provide due process for whistleblowers i.e. full access to the legal system, for timely and competent adjudication. The Tribunal did not provide this, but simply scrapping it does not solve that problem.

CFE will be conducting a detailed analysis of the recommended changes against our published criteria for effective protection of whistleblowers, and our previous analysis of the existing legislation. We will no doubt find that shortcomings remain in the recommendation for PSDPA, but overall this report signals a significant change for the better – if implemented.

That is the big question. It is ironic that Treasury Board receives this report calling for sweeping improvements at the very time that it is overseeing the impending collapse of the whistleblowing system – by denying the Office of the Public Sector Integrity Commissioner adequate budget to do its job while its workload is soaring due to more reports of wrongdoing and reprisals. PSIC’s current budget is little more than a rounding error in the federal budget: it is ludicrously inadequate for an agency with its responsibilities, and preventing just one serious scandal would repay the cost many times over. This is not penny-pinching: it is sabotage.

It is a national disgrace that Canada has fallen so far behind our peers and allies on the issue of whistleblower protection, since this is now universally recognized as an invaluable tool for protecting the public interest and the integrity of democratic institutions. More than 60 countries now have national whistleblowing laws, including the EU member states, which are all implementing strong, well-designed legislation. By acting on this report the Carney government can end 20 years of bad faith governance on this issue, demonstrate a commitment to ethical leadership, and enable Canada to rejoin the grown-ups among our peers and allies.