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Page March 1, 2023

European Court decision highlights Canada's Third-World status on whistleblower protection

The 2023 session of Parliament resumes with Canada’s antiquated, dysfunctional, and discredited whistleblower protection law still in place—and no credible government plan to fix it anytime soon. Meanwhile, a landmark decision in the European Court of Human Rights (ECHR) illustrates dramatically how far our democracy has fallen behind the rest of the world on this issue.   The ECHR decision will further strengthen whistleblower protection in all 46 members’ countries of the Council of Europe (COE), not just the 27 members of the European Union. Canada is one of five ‘observing countries’ of COE.    The decision arose from the 2012 “LuxLeaks” scandal, when whistleblowers exposed massive tax avoidance schemes operated through Luxembourg. The schemes had been devised by PricewaterhouseCoopers and marketed to their clients for years. These complex arrangements deprived countries of tens of billions of tax dollars from multinational corporations through tax rulings in Luxembourg that, although legal in Luxembourg, would likely be illegal in many other jurisdictions. These rulings had been kept strictly secret and once exposed became the subject of fierce debate, ultimately resulting in sweeping changes to tax legislation in Europe, and ongoing international efforts to rein in such schemes.    The ECHR decision related to one of the LuxLeaks whistleblowers, Raphaël Halet, a former PricewaterhouseCoopers employee. The court reversed his previous criminal conviction and awarded him costs and damages totalling 55,000 Euros. The court also revisited and strengthened its own criteria for affording whistleblowers’ protection.   Beyond this one decision, the language used by the court in its judgment is particularly telling. It references “the place now occupied by whistle-blowers in democratic societies and the leading role they were liable to play”—official recognition of what advocates have been saying for years: that democracies need whistleblowers, to help preserve the integrity of their institutions.     Although ECHR has no jurisdiction in Canada, this decision draws attention again to our embarrassing reputation as providing no meaningful protection for whistleblowers.   During 15 years of operation, at a cost of more than $100-million, our federal whistleblower protection law has failed to protect a single whistleblower, out of more than 500 who have reported reprisals. In 2017 a parliamentary committee, tasked by the government with reviewing this law, produced a unanimous report recommending sweeping changes—but this was simply ignored. Last year an expert study of about 50 countries’ whistleblower laws rated Canada’s as one of the worst—tied for last place.    With the government facing pressure from all sides and questions in Parliament, Treasury Board President Mona Fortier’s latest move seems little more than a delaying tactic: the announcement of a so-called ‘task force’ to study the law yet again and perhaps recommend some changes in a year or two. Meanwhile, we estimate that every year literally hundreds of Canadian whistleblowers lose their careers and their livelihood in courageous but ultimately fruitless attempts to protect the public from government or corporate wrongdoing. This carnage needs to stop.   The ball is in Prime Minister Justin Trudeau’s court: his government has access to all the information, expert guidance and best practices that it needs to quickly put in place a proper whistleblowing regime, one that brings us in line with the other democracies that we consider our peers. So far it seems that no amount of damning evidence, international humiliation, or public outcry can shame the prime minister and his government into doing the right thing. Now is the time for him to act decisively. We are all waiting.   David Hutton is a senior fellow at the Centre for Free Expression at Toronto Metropolitan University and former executive director of FAIR.   This story was first published by The Hill Times on February 20, 2023, and is republished here with the author's and The Hill Times' permission.