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News June 30, 2017

CFE's David Hutton publishes commentary on federal whistleblowing report

Kudos to House committee for sound recommendations on whistleblower protection


PUBLISHED : Monday, June 26, 2017 12:00 AM

OTTAWA—The parliamentary committee studying Canada’s federal whistle blowing law for the past five months has unanimously called on the Trudeau government to make sweeping changes to the act.

The Government Operations Committee (OGGO) was carrying out a long-overdue review of the Public Servants Disclosure Protection Act (PSDPA) created by the Harper government in 2006 and touted as the “Mount Everest” of whistleblower protection.

The legally required review should have taken place in 2012, but in spite of the history of scandal and controversy surrounding this whistleblowing regime, the Conservative government declined to launch the review, which was finally initiated by the Liberal government this February—10 years after the law came into force.

Whistleblowing advocates had high hopes for the outcome, and for once we were not disappointed.

The OGGO committee: a job well done

Given this major task out of the blue and with an already heavy workload, the OGGO committee members, much to their credit, rolled up their sleeves and dug in. Besides hearing from the bureaucrats running the system, the committee called many other witnesses: real-life whistleblowers, unions whose members had tried to use the system, and legal experts from other jurisdictions that have much better whistleblower protection laws, like the U.S., U.K., Australia, and Ireland.

Committee members grasped very quickly that the current system is simply not working. When they heard testimony from whistleblowers who had been crushed for trying to expose government wrongdoing, they were clearly appalled by the injustice of the life-changing reprisals inflicted on these decent and honest people.

The committee seemed to rally around a strong desire to put things right, reflected in the degree of non-partisan cooperation and the sheer amount of time and effort they put in—12 meetings over five months to hear testimony from 52 witnesses and more than 10 hours of deliberations over the report and its recommendations.

The testimony: gripping, eye-opening, and comical

The most gripping testimony came from the whistleblowers, whose lives have been shattered and who remain in limbo years later, still unable to obtain justice.

The most eye-opening testimony came from the experts representing other jurisdictions, who explained the technical issues involved and what properly written laws look like. These experts didn’t mince their words, describing the PSDPA as overly complex, badly written, and offering little if any real protection to whistleblowers. Some suggested that the best plan would be to scrap the present law completely and start over.

Some of the testimony seemed more like black comedy as officials from the Treasury Board and the whistleblower protection watchdog, the public sector integrity commissioner (PSIC), tried to defend the indefensible status quo. These scenes would have been hilarious were it not for the tragic consequences for honest public servants.

Integrity Commissioner Joe Friday boasted about his own “good leadership,” conveniently overlooking the fact that the auditors general’s reports and judicial review decisions have repeatedly exposed serious misconduct within the PSIC, where Friday has been part of senior management since 2008.

This year alone, in January and in March, senior judges ruled that Friday failed to do his job in two separate cases. Both judges independently describe Friday’s decisions as “unreasonable,” and “violating [the whistleblower’s] right to procedural fairness.” In one case, the judge condemned one of the PSIC’s long-standing practices—refusing to accept reprisal complaints merely because the whistleblower has submitted a grievance—describing it as “incompatible with the intent and purpose of the PSDPA.” These are strong words that would normally lead to the immediate resignation of the official in question.

Sweeping recommendations

The committee’s report is a 120-page document summarizing the testimony and briefs presented, recommending 34 individual changes under 15 headings. These recommendations include sweeping changing to the law, such as:

• Making it much easier for whistleblowers to prove that they have suffered reprisals—the current law makes this almost impossible—and providing compensation to “make them whole” again. This means repairing their lives as much as possible, taking into account harms done such as the devastating loss of earning potential when someone is blacklisted in their profession.

• Placing a duty on all departments and agencies to actively protect whistleblowers, rather than just a passive obligation to refrain from reprisals. This avoids the serious legal problem that when whistleblowers suffer life-changing reprisals it’s often very difficult to prove who was responsible. Management would now be responsible for making sure that reprisals don’t happen, and liable to be sanctioned for failing to do so.

• Requiring much better reporting, including performance measurements and oversight mechanisms, to allow close monitoring of enforcement and to reveal where further improvements are needed. Such measures would show, for example, whether the PSIC is doing its job and whether the system is working overall, to reduce the fear of blowing the whistle and to deter wrongdoing. Such information would make parliamentary oversight of the PSIC (which has been essentially non-existent) much easier in future.

One of the committee’s most important recommendations is to make the PSIC responsible for ensuring that all disclosures are investigated in a timely manner, including those carried out by departments or other agencies. Sensibly, the PSIC’s new powers would include running parallel investigations and intervening in other investigations when necessary.

PSIC is currently “hands off,” routinely fobbing off most whistleblowers to other agencies and processes, resulting in cases falling between the cracks, interminable delays, and often leaving whistleblowers bewildered and in limbo. The PSIC would now become clearly responsible for making the system work by ensuring that every investigation is done in a competent and timely manner. This would be a major change—almost a reversal of the role that the PSIC has chosen to play.

Other valuable recommendations include: allowing whistleblowers to go directly to the Public Servants Disclosure Protection Tribunal to seek a remedy for reprisals, bypassing PSIC. This would end the PSIC’s practice of routinely blocking whistleblowers’ access to the tribunal—which it has done in a stunning 97 per cent of cases; giving government contractors the right to seek protection from the tribunal when they have blown the whistle on government wrongdoing; allowing PSIC investigators to gather information from outside the public sector; and enabling whistleblowers to be awarded reasonable legal costs.

In summary, the committee has put together a set of thoughtful and important recommendations that, taken together, would fix many of the most pressing problems and set the scene for ongoing improvement in the future. The government should implement all of them without delay.

Next steps

The committee has requested that the government table a comprehensive response to the report, pursuant to Standing Order 109, which gives the government 120 calendar days to do so. Hence the Liberals’ intentions will become clear during the fall sitting of Parliament. This will be an acid test of Justin Trudeau’s election promises of fairness and greater transparency.

Why Trudeau needs to act

Whistleblower protection is a common-sense measure that works to enhance responsible government. While it can be mistakenly feared by those in positions of power, it is actually of great benefit both to them and to the public. Done well, whistleblower protection helps ensure that problems are identified and nipped in the bud well before they grow into damaging scandals that cause real harm to everyone involved.

The Phoenix payroll system is a perfect example of an entirely preventable political and social disaster, and it is deeply ironic that the Trudeau government is being hammered for a mess quietly bequeathed to it by the previous government.

The most visible problem is the inadequacy of the Phoenix payroll project itself, a pet project of Stephen Harper’s that was touted as a splendid success almost from the outset, apparently in defiance of the facts. But this was compounded by a second, more fundamental and pervasive problem – the silencing of those who could shed light on the hidden shortcomings. Our utterly broken whistleblowing system ensured that no one involved in the Phoenix project dared come forward then (or even today) to reveal that the emperor had no clothes.

For three years, the Phoenix train-wreck-in-the-making grew, quietly at first, until it became an unstoppable political and social mega-disaster, affecting the entire federal public service and those who work in it. To this day, employees who are aware of what happened cannot safely reveal what they know, and ministers still cannot get straight answers from the bureaucracy regarding what went wrong or, crucially now, how to fix it.

Our federal bureaucracy employs about 400,000 people and spends about $1-billion every day. It is a fair certainty that there are other troubled Phoenix-like projects under way that could implode at any moment. If Trudeau wants to ensure his government against such future debacles, he needs to make it safe for honest public servants to share what they know, to allow potential time-bombs like these to be defused before they blow up on his watch.

This is the smart political decision and one which would benefit all honest public servants, help make the bureaucracy more efficient and accountable, and protect Canadians from misconduct within government.

David Hutton is a senior fellow at the Centre for Free Expression at Ryerson University, and former executive director of the Federal Accountability Initiative for Reform (FAIR).

This story was first published by The Hill Times on June 26, 2017, and is republished here with the author's and The Hill Times' permission.